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miliar rule. No one can have seen an assembly of human beings awaiting transportation over the lines of public rail transportation without being painfully impressed with the necessity for rules and regulations for their government, and for much discretion in management by the carrier. It oftentimes needs a more substantial structure than rules to keep the traveling public within bounds, and thus prevent injury to others and themselves. For these purposes, structures of wood and iron are the necessary concomitants of crowded public travel, rendered necessary in the promotion of the public safety and convenience. In these respects, an onerous public responsibility has been imposed upon the carrier of passengers, which courts rigidly enforce. No one can witness the congested character of many intersecting streets, without being at once impressed with the necessity for the most careful system in regulation in order to make such places reasonably safe; and to add to such congestion by the diversion of traffic which now goes over other lines would only aggravate such condition, and is quite likely to create, not only public inconvenience, but danger to life and limb. The court may take judicial notice of conditions which exist at the intersection of Broadway and Twenty-Third street, and, in addition thereto, such condition and the danger attendant upon the giving of transfers at that point was established by proof upon the trial, as it was shown that, if this were made a transfer point, a diversion of travel from other lines to such point would be greatly increased, and the danger to passengers and others at such point rendered hazardous. If there be under this. statute no power of regulation in the issuance of transfers by the defendant, then the selection of routes rests in the volition of each individual passenger, and, if transfers are required to be given at each intersecting point over all the lines of railroad operated by the defendant, then any passenger may, at will, ride over any and all parts of the boroughs of Manhattan and the Bronx, changing at as many intersecting points as he arrives at, for a single fare of five cents. Manifestly, the Legislature never intended such result to flow from a construction of the provision. Clearly, the right secured to the passenger is the right to be carried from the place where he boards the car in continuous line, as near as may be, to his point of destination, and, in order to accomplish that result, the defendant is burdened with the responsibility of so arranging its system of transfers as will promote the convenience of the greatest number who travel over its line; and it is equally manifest that in order to promote such convenience, and carry the people who demand transportation during the so-called "rush hours" of the day, it must have some system in respect thereto, or breed confusion and danger.

I am of opinion, therefore, that the true construction of the section vests somewhat of authority in the defendant to fix transfer points where the convenience of the greatest number of the traveling public will be subserved in going to and from their respective points of destination; and, if this result was obtained by the transfer points which were established at the time when this action was brought, no right of action existed, even though such right was denied at the particular point. When the defendant has made provision for the issuance of transfers at intersecting points where the public convenience will be

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promoted, it makes compliance with the act, even though under such system it refuses transfers at some points. The right in this respect is not to be exercised arbitrarily, but reasonably, having regard to the convenience of the largest number of passengers which it carries. If it does not make reasonable compliance in this respect, and provide the best means for the convenience of the traveling public, it will violate the provision and incur the penalty.

This construction of the statute, however, does not avail the defendant in the present case, as it has pleaded no such defense in its answer, nor has it proved the same upon the trial. There is not a suggestion in the answer that the defendant has at any time fixed transfer points which will promote the convenience of the traveling public. The nearest approach to it is in paragraph 10, where it is averred that at the time in question there were other lines of railway which the plaintiff might have taken to reach his point of destination as easily and equally as well as to use the lines mentioned and described in the complaint. There is, however, no averment that these lines of road were under the control of, or being operated by, the defendant; and, while such fact can doubtless be determined by a reference to the lease, which is a part of plaintiff's proof, yet there is no averment that it issued transfers at intersecting points upon such line, or that it issued a transfer at its intersection with Eighteenth street, which would have carried the plaintiff to his destination. An examination of the testimony also fails to show that the defendant has made any compliance whatever with the provisions of section 104, or that the plaintiff could have reached his destination by a single fare over any line operated by the defendant. The witness called to establish the fact of the issuance of the transfer failed in his recollection upon such subject, and could not testify that retransfers were issued; nor does it appear that such question has been presented in such form as to be available to the defendant in any of the cases now pending before this court.

Since the foregoing was written, Mr. Justice INGRAHAM has considered the whole subject in an opinion handed down herewith. I concur in his opinion so far as it affects the leases made prior to May 1, 1891, for the reasons assigned by him. The provisions of section 78 (page 1398) expressly exclude its application to any lease in existence. prior to May 1, 1891. The lease of the Broadway line falls within such exception, in consequence of which there was no obligation resting upon the defendant to issue transfers at Twenty-Third street and Broad

way.

My conclusion, therefore, is that the determination of the Appellate Term in this case should be reversed, and the judgment of the Municipal Court affirmed, with costs.

LAUGHLIN, J., concurs. YAN BRUNT, P. J., concurs in result.

INGRAHAM, J. I do not agree in the construction given by the learned court from which this appeal is taken to section 104 of the railad law (chapter 676, p. 1406, Laws 1892). I do not understand that ur decision in the case of Mendoza v. Met. St. Ry. Co., 48 App. Div. $2, 62 N. Y. Supp. 580, upon reargument, 51 App. Div. 430, 64 N. Y.

Supp. 745-determined the question now before us. In that case, which came up on demurrer, we held that the defendant was not liable for the penalty there sued for. I view the question presented on this appeal as an open one in this court.

This action is based upon refusals of the defendant to give to the plaintiff transfers which would entitle him to one continuous trip from a point on Twenty-Third street to a point on Broadway, upon the line of the Broadway & Seventh Avenue Railroad Company, and from a point on the Broadway & Seventh Avenue Line to a point on the Twenty-Third Street Line. The line of the Twenty-Third Street Railroad intersects the Broadway & Seventh Avenue Line at the corner of Twenty-Third street and Broadway. For a first cause of action, the plaintiff alleged that he boarded one of the defendant's cars at a point on Twenty-Third street east of Broadway, paid his fare, and at the same time demanded from the conductor a transfer to be used over the Broadway and Seventh avenue line from the intersection of the said line at Broadway and Twenty-Third street south to his destination, which was refused; and the plaintiff demands a judgment for the penalty prescribed by section 104 of the railroad law (chapter 676, p. 1406, Laws 1892). There were several other causes of action all based upon a similar refusal-some being for a refusal to give a transfer from the Broadway & Seventh Avenue Line to the Twenty-Third Street Line, and some from the Twenty-Third Street Line to the Broadway & Seventh Avenue Line; and the single question is presented as to whether the defendant, who was operating these two lines under a lease of a corporation who was the lessee of both the Broadway & Seventh Avenue Railroad and the Twenty-Third Street Railroad, was required by section 104 of the railroad law to give such a transfer.

Section 104 of the railroad law is con.ained in article 4 of that act, relating to street surface railroads. That article provides for the incorporation of street surface railroads, and the conditions under which such corporations may be authorized to construct a railroad upon and along the street, avenue, road, or highway in any city, town, or village of the state. The article contains no provision authorizing railroad corporations to make contracts with each other, but section 104 provides that:

"Every such corporation entering into such contract 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 the 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."

And a penalty is provided for a refusal to comply with this provision. By section 78 (page 1398) of the railroad law, authority is given for any railroad corporation, or any corporation owning or operating any railroad or railroad route within this state, to contract with any other such corporation for the use of their respective roads or routes, or any

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part thereof; but that section contains a provision that "nothing in this section shall apply to any lease in existence prior to May the first, 1891." Article 3 of the statute of which section 78 is a part (Laws 1892, p. 1396, c. 676) authorizes the "consolidation, lease, sale and reorganization of railroad companies," and other sections of the article provide for the consolidation of one or more railroad companies.

The railroad law was originally enacted as chapter 565, p. 1082, of the Laws of 1890. Sections 103, 104, and 105 (page 1114) of that iaw were taken from sections 1, 3, and 4 of chapter 305, pp. 525, 526, of the Laws of 1885. It was amended in 1892, when sections 103 and 105, which were sections 1 and 3 of the act of 1885, were repealed, and section 4 of the act of 1885, re-enacted as section 105 of the railroad law of 1890, was inserted in the railroad law of 1892 as section 104.

By the railroad law of 1890, the provision of section 105, "Every such corporation entering into such contract," applied to a contract authorized by section 103 of the act; but, as section 103 was repealed by the amendment of 1892, section 105 of the act of 1890, which was made section 104 by the amendment of 1892, can only apply, as I understand it, to a contract made under section 78, which by express terms does not apply to a lease made prior to 1891. I cannot find that chapter 305, p. 525, of the Laws of 1885, has been repealed. It is not, however, necessary to consider whether or not the act of 1885 is in force, or what, if any, rights the plaintiff had under it, as the right of the plaintiff to recover is expressly limited by the complaint to a violation of section 104 of the railroad law of 1892. If section 104 of the railroad law does not apply, the Municipal Court was correct in awarding judgment for the defendant.

It seems to me that the refusal of the defendant to give to the plaintiff a transfer to ride from the point on the Twenty-Third Street Railroad Line to a point on the Broadway & Seventh Avenue Railroad Line, or a transfer to ride from a point on the Broadway & Seventh Avenue Railroad to a point on the Twenty-Third Street Line, was not a violation of section 104 of the railroad law, as amended in 1892. The Broadway & Seventh Avenue Railroad Company was incorporated under General Railroad Law of 1850 (Laws 1850, p. 211, c. 140), and by an indenture of lease dated the 13th of May, 1890, it leased all its railroads, including its leased lines, to the Houston, West Street & Pavonia Ferry Railroad Company. The Twenty-Third Street Railroad Company was organized under the general railroad act of 1850, and by an indenture of lease dated April 25, 1893, it leased to the Houston, West Street & Pavonia Ferry Railroad Company all its railroads, including leased lines, together with all the franchises, rights, powers, and privileges of the Twenty-Third Street Railroad Company; the Houston, West Street & Pavonia Ferry Railroad Company, thereby becoming the lessee of both roads. By an agreement dated April 29, 1893, the Houston, West Street & Pavonia Ferry Railroad Company consolidated with several other railroad corporations, and became the first Metropolitan Street Railway Company. The Metropolitan Street Railway Company, thus organized, subsequently consolidated with other companies and in April, 1902, the Metropolitan Street Railway Company, then operating both the Broadway & Seventh Avenue Railroad

Line and the Twenty-Third Street Railroad Line under these leases to the Houston, West Street & Pavonia Ferry Railroad Company, leased all its lines to the defendant, the Interurban Street Railway Company, a corporation organized in 1891, under the stock corporation law (chapter 564, p. 1066, of the Laws of 1890), to operate a railroad running from Mt. Vernon to Tuckahoe, in Westchester county. Thus, when the railroad law of 1892 was passed, the Houston, West Street & Pavonia Ferry Railroad Company was operating its line of road, and was also operating the Broadway & Seventh Avenue Line under a lease from that company. At that time the Twenty-Third Street Railroad Line was operated by the Twenty-Third Street Railroad Company, an independent corporation having no connection with either the Broadway & Seventh Avenue Railroad Company or the Houston, West Street & Pavonia Ferry Railroad Company, and there was consequently no obligation upon either company to give a passenger a transfer to ride upon the other line. Nothing contained in section 78 of the railroad law applied to this lease between the Broadway & Seventh Avenue Railroad and the Houston, West Street, & Pavonia Ferry Railroad.

This being the situation, the lease from the Twenty-Third Street Railroad Company to the Houston, West Street & Pavonia Ferry Railroad Company was executed and delivered. That lease, dated April 25, 1893, is between the Twenty-Third Street Railroad Company, party of the first part, and the Houston, West Street & Pavonia Ferry Railroad Company, party of the second part, and recites that the party of the first part owns and operates the street surface railroads and railroad routes in the city of New York upon Twenty-Third street from the North to the East river, and upon various other streets in the city of New York, and leases and operates the surface railroad and railroad route of the Bleecker Street & Fulton Ferry Railroad Company from Twenty-Third street, North river, to the Fulton Ferry and the Brooklyn Bridge; and the indenture granted, leased, and demised to the party of the second part and its successors all the railroads of the party of the first part, including the leased lines now or thereafter to be constructed and operated during the pendency of the lease, together with all the franchises, rights, powers, and privileges of the party of the first part to maintain, construct, and operate a railroad, to have and to hold the same unto the party of the second part, its successors and assigns, for the unexpired term of the charter of the party of the first part, and any extensions of the said charter; and, as a consideration for this demise, the party of the second part agreed to maintain, manage, use, and operate the line of railroads leased, to pay all taxes, assessments, and charges imposed upon the demised property, and to pay quarterly an annual rental of 18 per cent. on the par value of the capital stock of the party of the first part, and assumes all debts and obligations of the party of the second part. In this lease there is no mention of the lines of railroad operated by the lessee or by the Broadway & Seventh Avenue Railroad Company. Neither of these railroads is described in the lease, or in any way referred to therein, and it does not appear from the instrument that the lessee was the owner of or operating any line of railroad in the city of New York. As a fact, it

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