#### Julius Saltzburg and Thomas Kuritza, Respondents, *v.*Utica Home Telephone Company, Appellant.

Fourth Department,

November 12, 1913.

Telegraphs and telephones — Transportation Corporations Law, section 103, construed—refusal of telephone company to furnish service.

The object of section 103 of the Transportation Corporations Law, making a corporation liable for a penalty for refusal or neglect to send messages, is punishment, not damages, and it should not be extended by implication to cover an act not within its obvious meaning.

Hence, where a controversy has arisen over a claim made by a telephone company against a subscriber for past services, and upon his refusal to pay the company has removed the instrument, the subscriber cannot maintain an action under said section to recover the penalty.

Appeal by the defendant, Utica Home Telephone Company, from a judgment of the County Court of Oneida county in favor of the plaintiffs, entered in the office of the clerk of said county on the 19th day of November, 1912, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 18th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*T. H. Ferris,*for the appellant.

*P. H. Fitzgerald,*for the respondents.

Kruse, P. J.:

The judgment from which this appeal is taken is for a penalty under the provisions of section 103 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219), which requires every telegraph or telephone corporation on payment of charges to transmit messages with impartiality and good faith and in the order in which they are received, and for every refusal or neglect so to do makes the corporation liable for a penalty of $100, to be paid to the person sending or desiring to send such message.

It is not claimed by the plaintiffs that any particular message was offered to the defendant for transmission and refused. A controversy arose over a claim made by the defendant for *52past services; the plaintiffs disputed the claim and refused to pay it; and thereupon the defendant removed the telephone which had theretofore been maintained in the plaintiffs’ place of business.

The learned county judge, after calling the attention of the jury to the section under which the action is brought, stated that the language did not apply very clearly to the controversy, which was the right of the plaintiffs to have a private station or telephone maintained in their place of business, but finally held and charged the jury that the plaintiffs might recover if there was nothing due and owing the defendant, and if the claim was made in bad faith, intending to discriminate against the plaintiffs. The jury found against the defendant and rendered a verdict of $100 for the plaintiffs and the defendant appeals.

I do not think the plaintiffs’ grievance is covered by the section referred to. The statute is highly penal. While it should not be so strictly construed as to defeat its manifest purpose, neither should it be extended by implication to cover an act which is not within its obvious meaning. The object of the statute is punishment, not damages. If the plaintiffs have sustained damages through any actionable misconduct of the defendant, or are entitled to any affirmative relief against the defendant, they have their remedy by an appropriate action therefor. But I think they are not entitled to recover a penalty.

The motion to direct a verdict for the defendant' made at the close of the evidence should have been granted and the complaint dismissed, and that disposition should now be made of the case, as may be done under the provisions of section 1311 of the Code of Civil Procedure.

The judgment and order should, therefore, be reversed and the plaintiffs’ complaint dismissed, with costs to the appellant in this court and in the court below.

All concurred.

Judgment and order reversed and judgment directed in favor of the defendant dismissing the complaint, with costs, including the costs of this appeal.