Section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566) provides: “ Every such corporation shall receive despatches from and for other telegraph or telephone lines. or cor- . porations, and from and for any individual, and on payment of the usual charges by individuals for transmitting despatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such despatch and entitled to have the same so transmitted.”
For some time prior to September 2, 1907, defendant’s operators had been out on a strike, and the plaintiff had knowledge of this fact. On that day he went to an office of the defendant in the borough of Manhattan, and after writing a business telegram to Mr. William R. Petze at 623 West avenue, Kensington, Brooklyn, handed it to the operator in charge with fifty cents. He testified as follows: “ She said the telegram would be twenty-seven cents. Q. She read it, after you wrote it ? A. She read it, and she said,- ‘ You know we cannot take this only subject■ to delay.’ I says, ‘Is that so ? ’ she says ‘ yes.’ I says ‘ How much delay ? ’ and she says, ‘I can’t say, I can’t tell you anything about it;’ she had already marked up the telegram, and I said, ‘Well, you won’t take it and deliver it within an hour?’ she said ‘Ho, I can’t say what the delay will be. We will only take it subject to delay,’ and she just handed me back the telegram and my fifty cent piece,, after she had marked up the telegram.” The plaintiff took the money and telegram back and made no further effort to procure its transmission. He later brought this action • to recover the statutory penalty of $100. When plaintiff rested his case, defendant’s motion to dismiss the complaint was granted, and from the judgment accordingly entered this appeal is taken.
No. negligence of the defendant is alleged or claimed, and the *194plaintiff’s cause of action rests solely on the theory- that by refusing to accept the telegram in the manner and under -the circumstances stated, the defendant made itself liable: I think the evidence was insufficient' to establish a cause of action, and that the dismissal of the complaint was justified. It has been held by the courts of this State in construing the section .of the statute quoted that the penalty is only incurred by acts of partiality, bad faith or discrimination ( Wichelman v. Western Union Tel. Go., 30 Misc. Rep. 450; Hearn v. Western Union Tel. Co., 36 id. 557; Gifford v. Glen Telephone Co., 54 id. 468), and the same construction has been given to similar statutes in Arkansas and Indiana. (State v. Western Union Telegraph Co., 76 Ark. 125; 88 S. W. Rep. 834; Western Union Telegraph Co. v. Swain, 109 Ind. 405.) There is no evidence in the case at bar tending to establish in the slightest degree partiality, bad faith or discrimination, but it is contended upon the authority of Marvin v. Western Union Tél. Co., decided by the former District Court of the city of Hew York and reported only in volume 15, Chicago Legal News at page 416, that the omission of defendant’s operator to explain the nature and extent of the possible delay at the time of the presentation of the message was tantamount to the refusal contemplated by the statute; in other words, was an absolute refusal to receive and transmit the message. We are not in accord with this contention, but if that were the rule it is plainly apparent in the case at bar -that the plaintiff knew the reason and nature of the anticipated, delay. It is equally apparent that the operator did not know the extent of the delay, and she so advised plaintiff. His demand was not for an impartial transmission and delivery, but for a preference for his message, namely, it must be delivered “ within an hour,” and it was not until after this demand had been made that the operator returned the .message and money with the assertion that she would not receive it under such conditions.
The judgment must be affirmed, with costs.
Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.