#### Celia Moskowitz, an Infant, by Louis Griessman, her Guardian ad Litem, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

Railroad Law — Section 104 — Refusal to give transfer—Action for penalty.

In an action to recover the statutory penalty for the refusal of a street railway company to give a passenger a transfer (Railroad Law, § 104), it is no defense that the giving of transfers at the point in question might cause undue crowding in the street and at the crossings.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, sixth district, borough of Manhattan.

Sheehan & Collin (Charles A. Collin, John L. Wells and William M. Parke, of counsel), for appellant

Siegel & Louis, for respondent.

Scott, J.

This is an action to recover a statutory penalty for defendant’s refusal to issue a transfer at an intersection of its lines at Adams and Willoughby streets in the *120borough of Brooklyn. The plaintiff desiring to go from the borough of Manhattan, boarded a so-called Bergen street car at the Mew York end of the Brooklyn bridge. She paid her fare to the conductor and told him that she wanted to go to the Mavy Yard, and he gave her a. transfer. A passenger who accompanied her, having paid his fare, also asked for a similar transfer, which was refused. The attention of the conductor having been called to the fact that he had already given plaintiff a transfer, he took it back. At the intersection referred to plaintiff left the first car and took another, but having no transfer was compelled to pay an additional fare. The defendant relies upon several defenses) and mainly upon its showing that it ran and controlled several other lines of cars from the point of plaintiff’s embarkation to her point of destination, over which it is accustomed to give transfers, and upon the allegation that it would be ineon-. venient and dangerous to give transfers at the point at which plaintiff desired one. In presenting its defense it has been the evident purpose of the defendant to bring itself within the lines of the opinion delivered by Mr. Justice Hatch in Topham v. Interurban Street Railway Co., 96 App. Div. 323. Without passing to a consideration of the facts of the present case as viewed in the light of that opinion, it may be noted that in the respects dwelt upon by the defendant that opinion represented only the views of the distinguished justice who wrote it, and of one other. The ease itself was decided upon the point made by Mr. Justice Ingraham, which has since apparently been overruled by the Court of Appeals. O’Reilly v. Brooklyn Heights R. R. Co., 179 N. Y. 450.* Mr. Justice Hatch laid great stress upon the phrase in section 104 of the Railroad Law, which indicated that the purpose of the Legislature in exacting transfers at intersecting points was to promote the public convenience, and he considered that a state of facts might be shown wherein the public convenience would be better promoted by refusing transfers at a particular point, than by granting them, and he deemed that such a condition might present itself when *121it appeared that street travel and traffic were greatly congested at a particular point, and that a passenger seeking transportation might be carried from his point of departure to his point of destination for a single fare by an alternative route, not involving a transfer at the dangerous intersection. His conclusion was that section 104 of the Railroad Law (L. 1892, chap. 676), rightly construed, vests somewhat of discretion in the street railroad company 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 refusing to issue transfers at other points. As has already been suggested, this opinion, not having been adopted by the court, fails to carry with it the weight of authority, and is to be considered merely as the individual expression of opinion by a learned and experienced judge. As such it is entitled to much consideration. The opinion in the Topham case in the Appellate Term was also written by a learned justice of long experience and was concurred in by all of his associates. Upon the point here involved he said: “The fact that there was another route embraced within the defendant’s system, over which the plaintiff on each occasion might have traveled for a single fare, can make no difference, and the fact that the giving of transfers at the point in question might cause undue crowding in the street and at the crossings is no excuse for not giving them, unless sanctioned by legislative action.” 42 Misc. Rep. 503. Since this construction of the statute by the court has not been authoritatively overruled, we prefer to adhere to it.

Leventritt and Greenbaum, JJ., concur.

Judgment affirmed, with costs.

*

See Matter of Transfer Penalty Cases, 46 Misc. Rep. 582.