McLean v. Interurban Street Railway Co.

87 N.Y.S. 135

Opinion

PER CURIAM.

The judgment should be affirmed, with costs, on the authority of Topham v. Interurban St. Ry. Co. (recently decided by this court) 86 N. Y. Supp. 295, and the case of Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y. 644, therein referred to. The distinction of the case-last referred to made in Myers v. The Brooklyn Heights R. R. Co., 10 App. Div. 335, 41 N. Y. Supp. 798, was not brought to the attention of this court at the time of the decision of the Topham Case. In the Topham Case the plaintiff was a bona fide passenger. In the case at bar the plaintiff rode under the advice of an attorney for the purpose of recovering penalties, but paid a second fare whenever a transfer was refused. In order to have the question settled in this department whether a person riding for such a purpose can maintain an action under section 104 of the railroad act (Laws 1890, p. 1114, c. 565), and also whether more than a single penalty can be recovered in one action, the appellant should have leave to app'eal to the Appellate Division.

Judgment affirmed, with costs, with leave to appellant to appeal to the Appellate Division. All concur.