Osborne v. International Ry. Co.

• Decision Date: 20 May 1919
• Citation: 226 N.Y. 421
• Court: New York Court of Appeals Court of Appeals
• Parties: FRANK OSBORNE, Respondent, v. INTERNATIONAL RAILWAY COMPANY, Appellant.

226 N.Y. 421

123 N.E. 849

OSBORNE

v.INTERNATIONAL R. CO.

Court of Appeals of New York.

May 20, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Frank Osborne against the International Railway Company.From a judgment of the Appellate Division(177 App. Div. 709,164 N. Y. Supp. 226) reversing a judgment of the Special Term which dismissed the complaint (98 Misc. Rep. 7,161 N. Y. Supp. 1042), and affirming a judgment of the Municipal Court of the City of Buffalo for plaintiff, defendant appeals.Reversed.

See, also, 178 App. Div. 950, and judgment of special term affirmed.165 N. Y. Supp. 1102.

Harold S. Brown, of Buffalo, for appellant.

Harold J. Tillou, of Buffalo, for respondent.

McLAUGHLIN, J.

This action was brought in the municipal court of the city of Buffalo to recover, under section 59 of the Railroad Law(Consol. Laws, c. 49) and subdivision 7 of section 49 of the Public Service Commissions Law (Consol. Laws, c. 48), a penalty of $50.The plaintiff had a judgment, which was reversed and the complaint dismissed by the Special Term of the Supreme Court.He appealed therefrom to the Appellate Division, where the same was, by divided court, reversed, and the judgment of the Municipal Court affirmed.By permission the defendant appeals to this court.

Section 59 of the Railroad Law provides that any railroad corporation which shall ask or receive more than the lawful rate of fare, unless such overcharge were made through inadvertence or mistake not amounting to gross negligence, shall forfeit $50, to be recovered, with the excess so received, by the party paying the same.

At the conclusion of the trial the plaintiff consented, in so far as a recovery was sought under this section, that the complaint be, and the same was, dismissed.The judgment thereafter rendered was based solely upon the provisions of subdivision 7 of section 49 of the Public Service Commissions Law, which provides that:

‘Until and except as the Public Service Commission shall otherwise prescribe as to any street railroad corporation or corporations pursuant to the provisions of this chapter, every street surface railroad corporation entering into a contract with another such corporation as provided in section seventy-eight of the Railroad Law shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger.Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare.For every refusal to comply with the requirements of this subdivision the corporation so refusing shall forfeit fifty dollars to the aggrieved party. * * *’

There was substantially no dispute between the parties as to the material facts involved, and their rights necessarilyturn upon the construction to be put upon the statute quoted when applied thereto.

The defendant operates a system of street surface railroads in the city of Buffalo.It is made up of several different corporations operated under what is termed in the record the Milburn agreement.On the 12th of September, 1915, the plaintiff desired to go from the corner of Burgard place and Walden avenue to the corner of Elk and Sidway streets in the city of Buffalo.The shortest and most direct route between these two points is westward from Burgard place and Walden avenue, via a west-bound Sycamore street car to the corner of Fillmore avenue and Sycamore street; thence southerly upon a Fillmore avenue car to the corner of Abbott road and Smith street; thence westerly via an Abbott-South Park car to the corner of Elk and Sidway, to the point of destination.About 10:20 in the evening of the day mentioned the plaintiff boarded a Sycamore street car, asked for and received an Abbott-South Park car transfer, which he presented to the conductor on the south-bound Fillmore avenue car, and he then asked for and received a second transfer to the Abbott-South Park line.He put this second transfer in his pocket without examination.At the end of this line he boarded an Abbott-South Park car and presented the transfer last given to him.This transfer was accepted by the conductor, but he subsequently discovered the time within which it could be used had expired, and he then gave it back to plaintiff and told him he would have to pay his fare, which he did without objection or protest of any kind.The transfer was punched 10 o'clock, and when presented by plaintiff it was past 11 o'clock.Under the rules which had been adopted by defendant as to the use of transfers it could not be accepted by the conductor, as the time for its use had expired.It also appeared that this transfer was issued between 9:58 and 11 o'clock, during which period the conductor had issued 73 transfers, including that given to plaintiff, or an average of more than one every minute, besides attending to his other...