McMullin v. New York Power & Light Corp.

Foster, J. This is an action to recover penalties for an alleged violation of section 12 of the Transportation Corporations Law. This statute is penal in its nature and must be strictly construed. The evidence is insufficient to warrant a finding that the plaintiff made a written application in the first instance. No written application was made after service was discontinued. Under the authority of Shelley v. Westchester Lighting Co. (119 App. Div. 61), which apparently has never been reversed or disapproved, the plaintiff has, therefore, failed to make out a cause of action. Moreover, I am convinced that the plaintiff’s application, in whatever form it was made, was not made in good faith, but merely as a subterfuge to procure service for a relative who was then in default. This is of significance here because the action is to enforce a penalty. Penal statutes were made to protect members of the public, acting in good faith, and not otherwise. The complaint should be dismissed.