I dissent and vote for affirmance.
If I -understand the matter correctly the defendant, by the merger and consolidation of the several street surface railroad companies in Buffalo, is now the sole owner and operator of all the lines. Under these circumstances it would seem that it is regulated as to its rates of fare and its duty to carry passengers, between different points on its whole system by section 181 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481) which prescribes a five-cent fare, and that its liability for failure to comply with this section is the one prescribed by section 59 of the Railroad Law. Such must necessarily be the case as respects passengers whose journey takes them over lines of one of the merged companies only. *713It may be that there are reasons why section 181 is not applicable, not disclosed by this record, but if it is applicable, I think it should be held to be the controlling statute, to the end that defendant’s liability for penalties arising as in this case, from a mere unintentional error of the conductor in punching the transfer will be the same whether the passenger seeks to ride over a part of its lines which originally belonged wholly to one of the merged companies or lines that belonged originally to different companies.
This question was not involved in Braffett v. Brooklyn, Q. C. & S. R. R. Co. (204 N. Y. 440) for in that case the refusal to issue the transfer was absolute and intentional, the claim of the defendant company being that it was not required to carry plaintiff over the two sections of its road for a single fare.
Judgment of Special Term reversed, with costs, and judgment of City Court affirmed, with costs.