It is argued that the profile which formed part of the specifications must have had reference to a fixed surface line in showing the depth of excavations, and that that was the centre line of the right of way; but the evidence of the engineer who made it is to the contrary, viz., that after the custom in the making of such maps, the surface line shows the general or average surface elevation at the place in the right of way, instead of along a fixed line.

There is another reason why the dismissal was erroneous, even assuming that the original contract required the trench to follow the centre line. As has already been mentioned, the original contract requiring the pipe to be laid in a trench was by agreement of the parties and the surety changed by substituting a tunnel along the section in question. The change was a concession to the contractor and surety, it being for their benefit. The trench for most of the distance was to be from 30 to 35 feet deep, all through rock excepting the top 13 feet, and the object of the change was to make the work less expensive. The agreement of change does not say the tunnel shall follow the centre line; it simply substitutes a tunnel for a trench, except that the tunnel is to be 9 feet lower than the trench. It would be easy enough to follow the centre line on the surface in digging the trench, but to follow that constantly curving line in building such a small tunnel through rock 39 to 44 feet below the surface would be a very different matter. The evidence is that it would be impracticable. Now the change from trench to tunnel carried with it all things necessary to make such change practicable. The parties did not mean an impracticable change. The contrary must be presumed. If it were possible at all to approximately excavate the tunnel through rock on the constant curve of the centre line, instead of on a straight line, or straight lines, the great nicety and difficulty of it would add greatly to the expense, whereas the object of the change was to lessen the expense. There was no reason to do so, and it would have been folly and detrimental to the contractor and the surety to do so.

When this case was here before (97 App. Div. 344, 90 N. Y. Supp. 16), the record made it appear to us that there was a substantial departure from the contract in doing the work, to the injury of and which therefore released the surety, i. e., a "change of the route from that around the hill to the straightened line through it," as our opinion says; and we properly concluded that such change "released the surety in the absence of its assent." We now know from the present record that there was no such agreement or change, but that the contract was substantially performed.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide event. All contur, except HOOKER and RICH, JJ., who dissent.

(121 App. Div. 527.)

and 140 New York State Reporter

SULLIVAN v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. October 18, 1907.) CARRIERS-CARRIAGE OF PASSENGERS-TRANSFERS-DEMAND.

Where, at the time a passenger gave his transfer to the conductor, he held out his hand to receive another, but the conductor muttered some thing, not heard by the passenger, and passed on through the car, and. on his return, the passenger orally demanded a transfer, which was refused, there was a sufficient compliance with the rule of the company requiring passengers to demand transfers at the time of payment of fare.

Appeal from Municipal Court, Borough of Brooklyn, First District. Action by Patrick Sullivan against the Brooklyn Heights Railroad Company for failure to give a transfer. At the time plaintiff gave his transfer to the conductor, he held out his hand to receive another. The conductor muttered something, not heard by plaintiff, and passed on through the car; but, on his return, plaintiff orally demanded a transfer, which was refused. The defense was that plaintiff had not complied with defendant's rule, requiring passengers to demand transfers at the time of payment of fare, which rule was posted in the car. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

A. M. Williams, for appellant.

Henry Morris Haviland, for respondent.

WOODWARD, J. This case, as finally submitted to the Trial Court, presented a question of fact as to whether or not the passenger by adequate word or sign requested a transfer from the conductor at the time he paid his fare. This question was decided in favor of the plaintiff. I am of opinion that the decision upon the facts was justified by the evidence.

This being so, the question of law presented in behalf of the appellant as to the reasonableness of the rule requiring the request for the transfer to be made at the time of paying the fare is not involved in this case.

The judgment of the Municipal Court should therefore be affirmed, with costs. All concur.

(121 App. Div. 582.)

BULL v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Division, Second Department. October 23, 1907.) CARRIERS CARRIAGE OF PASSENGERS-REFUSAL TO GIVE TRANSFERS-PENAL

TIES.

Where it is shown that one became a passenger merely to see whether or not the company was giving transfers as provided, and that he had no business beyond the point of transfer, he is not aggrieved, within the meaning of the statute, by the company's refusal to issue him a transfer. Gaynor and Woodward, JJ., dissenting.

Appeal from Municipal Court, Borough of Richmond, Second District.

Action for penalty by Harcourt Bull against the New York City Railway Company. From a judgment for plaintiff, defendant appealed. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and GAYNOR, JJ.

James L. Quackenbush (Henry F. Gannon, on the brief), for appellant.

Harcourt Bull, pro se.

HOOKER, J. This is an appeal by the defendant from a judgment of the Municipal Court for the penalty for the refusal to issue a transfer. On cross-examination the plaintiff testified that he rode to the transfer point "with the sole object of simply traveling over the line, to see what would be done,” and:

"Q. If you had received a transfer, you had no business beyond the point at which your transfer was honored? A. I had obtained the information I was after:"

It is obvious that the plaintiff was not "aggrieved," as the term is used in the statute. The judgment should be reversed, on the authority of Nicholson v. New York City Railway Company, 118 App. Div. 858, 103 N. Y. S. 695.

Judgment reversed, and new trial ordered; costs to abide event.

HIRSCHBERG, P. J., concurs. JENKS, J., concurs, on the authority of Myers v. Brooklyn Heights R. Co., 10 App. Div. 335, 41 N. Y. Supp. 798.

GAYNOR, J. (dissenting). It is claimed that the plaintiff cannot recover because he was traveling between the two points for the purpose of seeing if the defendant complied with the statute by carrying passengers for one fare and giving them transfer tickets, and with intention to sue for the penalty if it did not. We have a controlling decision of our highest court to the contrary. Fisher v. N. Y. C. & H. R. R. Co., 46 N. Y. 644. It was there held that the fact that the plaintiff was a passenger only for the purpose of paying the excessive fare which the company was charging, and then suing it for the penalty, was no defense to the action. And that decision is just as applicable, in all just reason, and apart from quibbling, to section 104 (Laws 1890, p. 1115, c. 565) as it is to section 39, which embodies the statute construed by it. The opinion in Nicholson v. N. Y. City Railway Co., 118 App. Div. 858, 103 N. Y. S. 695, makes a distinction. It is there said that while section 104 applies to a "passenger" in terms, section 39 does not. "Not a word" (says the opinion there) "is said in that statute" (section 39) "about a passenger, but it is the party paying the excess of fare who may maintain the action." But who, pray, pays a fare but a passenger? Calling him "party" does not make him any the less a passenger.

And it is said that section 104 by passenger means a passenger in good faith, and in terms refers to a "party aggrieved," and that one who rides over a railroad company's lines to see if it obeys the law as to fare and transfers is not a passenger in good faith, or a "party ag

and 140 New York State Reporter

grieved" if refused a transfer or charged a second fare. That is exactly the claim that was repudiated in the Fisher Case. "The forfeiture is imposed on the company for its act, and this entirely irrespective of the object or motive of the passenger in travelling," said the Court of Appeals. In the present case "the forfeiture is imposed on the company for its act" of refusing a transfer, and charging another fare, "and this entirely. irrespective of the object or motive of the passenger in travelling." And it is to be noted that the Court of Appeals calls the plaintiff a "passenger," and not a "party," and makes no fine distinction between the two words. Indeed, both sections call the person overcharged or refused a transfer a "party," so that there is in fact no difference of terminology to base an argument on.

Is it to be held by the courts that it is not legitimate, orderly, and proper business for a member of the community to ride over a railroad route to see that the company is complying with its duty to the public, and with the intention of suing it for a penalty to compel it to do so? For many years the street railroad companies throughout the city of New York refused to carry passengers for a single fare, and give transfers therefor as required by law, as recent decisions of our courts fully attest. Those who finally came forward and made it their business to take note of such violations, and sue the companies for penalties therefor, and thereby compelled them to do their duty, did a much needed and righteous public service. They received in return the gratitude. and good will of the community, and should not receive the reproach of the courts. The position that a citizen who becomes a passenger to ride about the city to see that the duty the company owes by law to the community is being fulfilled, is not a passenger in good faith, or not to be deemed a passenger at all, is an incredible one for the courts to take. The case of Myers v. Brooklyn Heights, 10 App. Div. 335, 41 N. Y. Supp. 798, is plainly distinguishable from the present case, in that there the passenger did not continue on his trip after the refusal of the transfer and pay the extra fare, while here the plaintiff did. But I do not think we should admit of such a distinction. He might have continued if he had got the transfer ticket which was illegally refused to him. And, really, how can it be said that one refused a transfer ticket forfeits his right to the penalty by not continuing on his journey, or by walking the rest of the way? Moreover, the plaintiff there was not refused because he was out seeking for violations; the company knew nothing of his motives or object. The act of the company in refusing the transfer incurred the penalty without regard to his motives or object. It is time that the whole matter be set right; and it is for us to follow the decision of the highest court in the Fisher Case, and not decisions which have set it at naught. The contrary is to set aside a plain statute.

WOODWARD, J., concurs.

(56 Misc. Rep. 253.)

TOWNSEND v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Special Term, Ulster County.

1. EASEMENTS-DUTY TO KEEP IN REPAIR.

May, 1903.)

It is the duty of one having a right of way over property of another to keep the right of way, or at least the approach thereto over his own lands, in repair, though this rule does not apply in case of farm crossings over railroads, provided for in the statute.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Easements, §§ 117-119.]

2. RAILROADS-USE OF RIGHT OF WAY.

A railroad, whose right of way ran through plaintiff's premises, erected on its right of way a platform for the reception and shipment of freight. Plaintiff contended that the placing of the platform was an unreasonable burden on the right of way, and that by reason of its maintenance persons desiring to reach the platform went on a portion of a dock owned by plaintiff. Held, that no right of action against the railroad existed, in view of evidence that plaintiff might, by the erection of a short fence, prevent persons using the platform from going on her land. [Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 179182.]

3. NUISANCE-WHAT CONSTITUTES.

The action of a railroad in permitting surface water from one side of its track to escape to the other side alongside of a highway does not create an actionable nuisance.

4. RAILROADS-USE OF RIGHT OF WAY.

A railroad has the first right to the use of its right of way, acquired by condemnation proceedings for the purpose of its railroad, and may make such reasonable changes in its tracks as may be necessary for the advantageous use of its property and its growing needs as the change of commerce dictates.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 179-182.]

5. SAME.

Where the owner of land, through which a railroad right of way passed, used certain crossings, no cause of action against the railroad accrued to him by reason of slight alterations of the grade of the tracks and roadway of the railroad, making the approach over the crossings a trifle more difficult.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 179182.]

Action by Theophelia G. Townsend against the New York Central & Hudson River Railroad Company. Judgment for defendant.

Bernard & Van Wagonen (Howard Chipp, of counsel), for plaintiff. Amos Van Etten, for defendant.

BETTS, J. Prior to December 31, 1881, one Jacob Handley owned certain dock premises on the Hudson river at Milton, in the town of Marlborough, in this county, at and from which several steamboats rented piers or docks and carried on a general passenger and freighting business, and on said December 31st, the New York, West Shore & Buffalo Railway Company, the predecessor in title of the defendant, acquired a certain strip or portion through said premises by condemnation proceedings for the purpose of constructing and operating its proposed railroad, paying to said Jacob Handley therefor the sum of