McLean v. Interurban Street Railway Co.

O’Brien, J.: This action is brought to recover four penalties claimed by the plaintiff to have been incurred by the defendant through its refusal to transfer him while a passenger upon its railway system from one of its lines to another, as required by section 104 of the Railroad Law (Gen. Laws, chap. 39; Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 676). Upon the trial and under his first cause of action the plaintiff testified that on July 30, 1903, he left his office in the southern part of New York and boarded a surface car upon the Eighth avenue line of defendant’s system, intending to make a continuous trip over that line and over the Third avenue line, which was also controlled and operated by the defendant, to his home in the northern part of the city; that after he had boarded the car and when he paid his fare he asked the conductor for a transfer at the corner of Eighth avenue and One-Hundred and Twenty-fifth street, where the two lines intersected;; that the conductor refused to issue such transfer to him at that time,, and again refused to do so in answer to his second demand when the car reached the point of intersection referred to; that plaintiff then got off the Eighth avenue car, boarded one of the Third avenue line going in the direction of his home, stated the situation to the conductor of that car, who refused to carry him further unless he paid an extra fare, which he thereupon did. All of this testimony was uncontradicted, and the defendant by its answer admits that at the time the transfer was refused it controlled, operated and managed both of the intersecting lines, which were wholly within the limits of the city of New York. Upon these facts the plaintiff was entitled to recover the penalty of fifty dollars prescribed by section 104 of the Railroad Law. That question need not be discussed, as it has recently been decided by the Court of Appeals in the case of Griffin v. Interurban Street R. Co. (179 N. Y. 438). (See, also, O'Reilly v. Brooklyn Heights R. R. Co., 179 N. Y. 450.) It was further held in the Griffin Case (supra) that the penalties provided for in section 104 for every refusal to comply with its requirements are not cumulative, and only one penalty can be recovered in a single action, and that the commencement of the action is to be regarded as a waiver of all previous penalties [20] incurred. Under this decison it follows that the plaintiff herein could only recover a single penalty; and, therefore, it is unnecessary to consider or pass upon the evidence showing other violations by the defendant of section 104. The judgment appealed from must be modified by reducing it to the sum of sixty-nine dollars and thirty-one cents, including interest, costs, etc., and as thus modified the judgment is affirmed, without costs. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred. Judgment modified by reducing same to the sum of sixty-nine dollars and thirty-one cents, including interest, costs, etc., and as thus modified affirmed, without costs.