I do not agree in the construction given by the learned court from which this appeal is taken to section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676). I do not understand that our decision in the casé of Mendoza v. Metropolitan St. R. Co. (48 App. Div, 62; upon reargument, 51 id. 430) determines 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 and Seventh Avenue Eailroad Company, and from a point on the Broadway and Seventh Avenue line to a point on the Twenty-third Street line. The line of the Twenty-third Street railroad intersects the Broadway and 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 arid the plaintiff demands a judgment for the penalty prescribed by .section 104 of the Railroad Law (supra). There were several other causes *333of action all based upon similar refusals, some being for refusals to give transfers from the Broadway and Seventh Avenue line to the Twenty-third Street line, and some from the Twenty-third Street line to the Broadway and 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 which was the lessee of both the Broadway and 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 contained in article 4 of that act relating to street surface railroads. That article, as amended, provides for the construction of street surface railroads and specifies the conditions under which such corporations may be authorized to construct a railroad upon and along any 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 as follows: “ 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 of the Railroad Law (as amd. by Laws of 1893, chap. 433) 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 part thereof, but that section contains a provision that “ nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety-one.” Article 3 of the statute of which section 78 is a part *334authorizes 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 of the Laws of 1890. Sections 103, 104 and 105 of that law were taken from sections 1, 2, 3 and 4 of chapter 305 of the Laws of 1885. It was amended by chapter 676 of the Laws of 1892, when sections 103 and 104, which were sections 1, 2 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 May 1, 1891. Chapter 305 of the Laws of 1885 was repealed by section 34 of chapter 687 of the Laws 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 and Seventh Avenue railroad line, or a transfer to ride from a point On the Broadway and 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 and Seventh Avenue Railroad Company was incorporated under the General Railroad Law of 1850 (Chap. 140, as amd.), and by an indenture of lease dated the 13th day of May, 1890, it leased all its railroads, including its leased lines, to the Houston, West Street and Pavonia Ferry Railroad Company. The Twenty-thii;d Street Railway Company was organized under the General Railroad Law of 1850, as amended, and bv an indenture of lease dated April 25,1893, it leased to the Houston, West Street and Pavonia Ferry Railroad Company all its railroads, including leased lines, together with all the franchises, rights, powers *335and privileges of the Twenty-third Street Railway Company.. The Houston, West Street and Pavonia Ferry Railroad Company thereby became the lessee of both roads. By an agreement dated ¡November 29,1893, the Houston, West Street and Pavonia Ferry Railroad Company consolidated with several other railroad corporations and became the first ¡Metropolitan Street Railway Company on or about December 13, 1893. 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 and Seventh Avenue railroad line and the Twenty-third Street railroad line under these leases to the Houston, West Street and Pavonia Ferry Railroad Company,leased all its lines to the defendant, the Interurban Street Railway Company, a corporation organized in 1901 under the Stock Corporation Law (Laws of 1892, chap. 688, as amd.), and operating a railroad running from Mt. Vernon to Tuckahoe in Westchester county. Thus, when the Railroad Law of 1892 was passed, the Houston, West Street and Pavonia Ferry Railroad Company was operating its line of road, and was also operating the Broadway and 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 Railway Company, an independent corporation having no connection with either the Broadway and Seventh Avenue Railroad Company or the Houston, West Street and 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 and Seventh Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company.
This being the situation, the lease from the Twenty-third Street Railway Company to the Houston, West Street and Pavonia Ferry Railroad Company was executed and delivered. That lease, dated April 25, 1893, is between the Twenty-third Street Railway Company, party of the first part, and the Houston, West Street and Pavonia Ferry Railroad Company, party of the second part, 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-*336third 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 and 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 or 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 eighteen 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 first part. In this lease there is no mention of the lines of railroad operated by the lessee or by' the Broadway and 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 was at the time operating its own line of railroad, and also under a lease with the Broadway and Seventh Avenue Railroad Company it was operating that company’s line of road, but that fact is not recited in the lease, and the only railroads described or referred to in the lease are the Twenty-third Street railroad and a railroad that the Twenty4hird ■Street Company was operating under a certain lease or agreement with it..
I think that section 104 of the Railroad Law applies to contracts made in pursuance of section 78 of that law. By the express pro-^ visions of section 78, however, that section did not apply to any lease in existence prior to May 1, 1891. The Houston, West Street and Pavonia Ferry Railroad Company was, therefore, operating a *337railway under a lease by the Broadway and Seventh Avenue Railroad Company, made in May, 1890, and nothing in section 78 of the law applied to such a lease. Then, section 104 provides that " every such corporation entering into such contract (that is, such contract as'is provided for by section 78) 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.” Row, “ such contract” was one made in pursuance of section 78 of the act, and if the Broadway and Seventh Avenue Railroad Company, or the Houston, West Street and Pavonia Ferry Railroad Company, had made a contract w.ith the Twenty-third Street Railway Company, authorized by section 78 of the act, it was then obliged to carry any passenger desiring to make one continuous trip between any two points on the railroads, or portions thereof embraced in such contract, arid to give 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; but it was only to the road or roads or portions thereof embraced in the contract to which a passenger was entitled to a transfer. A line of railroad operated by the Houston, West Street and Pavonia Ferry Railroad Company under a lease at the time it received the lease from the Twenty-third Street Railway Company was not a railroad embraced' in the lease of the Twenty-third Street road. As before stated, there is no recital in the lease that the lessee is operating any railroad. The Broadway and Seventh Avenue line is not mentioned in any way in the lease. The lease of the Twenty-third Street line had no possible relation to or connection with the lease of the Broadway and Seventh Avenue railroad, which was in existence before the passage of the •act, and is by the express provisions of the act unaffected by its provision. The obligation to give a, transfer is not imposed upon two roads which make contracts in relation to each other, but where a contract is made between two railroad companies, the statute imposes an obligation upon both companies to give to a passenger a transfer from one road to the other between two points on the railroads or portions thereof which are embraced in such contract. If it had *338' been intended by this provision to include all railroads operated by the contracting parties, it certainly would have been easy to say so ; but that is not the obligation that is imposed. It is the right of a, passenger to be carried between any two points on the railroads or portions thereof embraced in such a contract, and this language negatives the intention of requiring each, contracting railroad to give to passengers transfers to all portions of the lines operated by each contracting company, for the right is expressly limited to the “railroads or portions thereof ” that are embraced in the contract. Now, as before stated, there was no portion of the Broadway and Seventh Avenue line embraced in any contract or lease made subse- ' quent to,May 1, 1891, or to which section 104 of the Railroad Law could apply.
I think, therefore, that there was no obligation imposed upon the Houston, West Street and Pavonia Perry Railroad Company to give a transfer from any portion of the Broadway and Seventh Avenue-line to a point on the-Twenty-third Street line, or to carry passengers upon the Twenty-third Street line which was imposed by the lease of the Twenty-third Street Railway Company to the Houston, West Street and Pavonia Ferry Railroad Company. Nor do I think that the subsequent consolidation which merged the Houston, West-Street and Pavonia Ferry Railroad Company and other corporations into a new corporation, which was called the Metropolitan Street Railway Company, imposed such an obligation, or is included in the provisions of section 104 of the act. Neither the Broadway and Seventh Avenue Railroad Company nor the Twenty-third Street-Railway Company was included in the corporations which were merged and became the Metropolitan Street Railway Company. They are still existing corporations, the owners of their respective lines and railroads; and the Metropolitan Street Railway Company and subsequently the defendant corporation came into possession of these railroads simply as the assignee of the original lessee. The-defendant corporation is located in Westchester county and has no-connection with any portion of either the Twenty-third Street line- or the Broadway and Seventh Avenue line ; and so the provisions-of section 104 of the Railroad Law did not apply to this lease made-between railroad companies owning or operating lines of railway within and without the city of New York, as it is expressly pro*339vided by said section 104 that the “ provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village.” I do not see how it can be said that the Broadway and Seventh Avenue line which was being operated by the Houston, West Street and Pavonia Ferry Railroad Company under a lease prior to the adoption of section 78 of the Railroad Law, was a railroad or a portion of a railroad embraced within the contract of lease made by and between the Twenty-third Street Railway Company and the Houston, West Street and Pavonia Ferry Railroad Company in 1893. In none of the consolidation agreements which resulted in the organization of the Metropolitan Street Railway Company was the Broadway and Seventh Avenue or the Twenty-third Street railroad mentioned or included within the contract. Neither of these roads has ever been consolidated with or become a part of the Metropolitan Street' Railway system, and the lease of the Metropolitan Street Railway system to the defendant was a lease of roads operated in the city of New York to a railroad company operating a line of railroad in the county of Westchester and thus expressly excluded from the obligation imposed by section 104 of the Railroad Law.
My conclusion is that the determination of the Appellate Term must be reversed, with costs, and the judgment of the Municipal Court affirmed.
Van Brunt, P. J., concurred.