Citations
- 123 A.D. 784
Full opinion text
Gaynor, J.:
The complaint alleges that the defendant operates “ its ” electric street railroad in the Borough of Brooklyn called the Greenpoint line, which runs through several streets, including Kent and Classon avenues, and “its” other called the Flushing and Graham avenue line, which runs through several streets, including Flushing avenue; that the said railroads cross each other on the said Flushing and Classon avenues, two streets which cross, at right angles. It then alleges that the plaintiff became a passenger on the first mentioned line and paid his fare of five cents; that he demanded á transfer ticket to enable him to change to the said second mentioned line at the said' point of crossing, and was refused; that he changed to a car of the said latter line at the said crossing, and another fare of five cents was exacted of him, which he paid. The evidence conforms to the complaint, but there is no evidence as to whether the defendant constructed and owns the said roads, or only ■operates them as lessee or under some contract. The complaint alleges that the said two lines are operated under section 101 of the Bailroad Law, and that the defendant incurred the penalty of $50 prescribed by section 39 of the Bailroad Law. As section 101 relates to both roads constructed and owned by the operating company, and roads only controlled and operated by it by lease or ether contract, this allegation does not inform us whether the roads in question are owned by the defendant, or only operated by it by lease or other contract. And section 39 provides such penalty against any railroad corporationwhich shall ask or receive more than the lawful rate of fare, unless' such overcharge was made through inadvertence or mistake not amounting to gross negligence ”. It .was taken into the codification of the railroad laws from chapter 185 of the Laws of 1857 as amended by chapter 415 of the Laws of 188.6.
The complaint is therefore confusing. It alleges a refusal to give a transfer, but claims a penalty under section 39. That section provides no penalty for a refusal to give a transfer, but only for asking or receiving more than the lawful rate of fare. Only section 104. of the Railroad Law requires the giving of transfers, and it prescribes a penalty of $50 for refusing to do so. ’ Section 39 has nothing, to do with a violation of the requirements of section 104.
And when we read section 104 we find that the plaintiff’s case is not within it by the complaint, unless we can eke out of the scant words of the complaint an allegation that the defendant controls and operates the two- crossing roads in question by lease or other • coii tract; and not by the evidence, for there is none on that head. That section relates only to a street surface railroad company which operates the street surface railroad lines of other companies which it has acquired by lease or other contract, i.