Plaintiff sues to recover the cumulated amount of five penalties of fifty dollars each for defendant’s failure to furnish transfers on demand from one line of street railways to another.
Two of such refusals were at Broadway and Twenty-third street; two at Sixth avenue and Twenty-third street, and one at Broadway and Fourteenth street, in the borough of Manhattan.
In opposition to plaintiff’s claim defendant calls attention to the decisions and opinions in the cases of Topham v. Interurban St. R. Co., 96 App. Div. 323, and Scudder v. Interurban St. R. Co., id. 340, and the provisions of section 34, *224chapter 687 of the Laws of 1892 (known as the General Corporation Law), repealing chapter 305 of the Laws of 1885.
By the cases cited, the rules are established or approved that such penalties may be cumulated, and that section 104 of the Railroad Act is not limited to traffic contracts, but embraces contracts of lease as well.
The opinion of Justice Hatch in the Top'ham case suggests that if in that case it had been pleaded and proved that transfer points had at any time been fixed which would promote the convenience of the public this defense would have been available by defendant.
In the present case the fixing of such transfer points as will promote the convenience of the traveling public is neither alleged nor proved. *
It is true that defendant’s answer alleges that there were various other lines of street railway by which plaintiff' could ' have reached his destination, that traffic at the point at which transfers were demanded was greatly congested and that the effect of not issuing transfers at such points was to divert traffic to other lines and to promote the comfort of the public, and there are admissions by plaintiff to the effect that transfers were obtainable at various other points of the lines in question; but this falls far short of either pleading or proving that the defendant had fixed transfer points which would promote the convenience of the traveling public.
The prevailing opinion by Mr. Justice Ingraham, in the Topham case, rests upon the fact that in that case plaintiff sought to recover under section 104 of chapter 676 of the Laws of 1892, known as the Railroad Law; that the court found that section 104 applied to contracts made in pursuance of section 78 of that law, and that by the provisions of section 78 that section did not apply to any lease in existence prior to May 1, 1891; that the obligation to carry passengers for one fare only applied to passengers on railroads or portions thereof embraced in such contract as referred to in section 104, and that the leases or agreements proved either did not embrace the lines to or from which transfers were sought or were in existence prior to May 1, 1891.
*225The interpretation of the statute in that case is, of course, controlling upon this court, so far as it is applicable to the case under consideration. The reference to the act of 1885 in that opinion, is, however, merely obiter, since under the pleading in that case it was immaterial, as stated in the opinion, whether the act of 1885 was repealed or not.
It remains to be considered whether the pleadings and the facts as presented to the court in the present case are so similar as to make that decision determining, or whether they are so distinguished as that the plaintiff may recover.
The only points of difference pointed out by plaintiff’s counsel are:
First. That the Topham case was, by the terms of the complaint, brought under section 104 referred to, while in the present case the plaintiff is not limited to any particular law, but may recover under any statute applicable to the case. The only other statute to which attention has been called, however, is chapter 305 of the Laws of 1885, which was repealed as above stated.
Plaintiff claims that on general principles of law such repeal does not relieve defendant from the obligations which that statute imposed, so long as it continues to enjoy its benefits, and further, that by the provisions of section 36 of chapter 687 of the Laws of 1892, section 104 above referred to is merely a re-enactment of the provisions of the law of 1885 and, therefore, imposes a continuing obligation upon parties who have taken advantage of that law, in spite of the repeal of the enabling portion thereof.
It is difficult to believe that the Legislature, in repealing chapter 305 of the Laws of 1885, intended to relieve corporations which had taken advantage of the provisions of that law from obligations which they thereby assumed.
In the case of De Grauw v. Long Island R. R. Co., 43 App. Div. 502; affd., 163 N. Y. 597, the court, Hatch, J., says: “ We are always to look at surrounding conditions when they will aid us in the interpretation of a statute, and "so we may consider the fact that the revision commission had before it all of the railroad legislation of the State, both special and general; ” etc.; and in the opinion in the Topham *226case, Mr. Justice Hatch says: “ It is the spirit and purpose of a statute which is to be regarded in its interpretation, and if those find fair expression in the statute, it should be so construed as to carry out legislative intent, even though such construction is contrary to the literal meaning of some of the provisions of the statute. A reasonable construction should be adopted in all cases where there is doubt or uncertainty in regard to the intention of the law makers.”
Section 34 of chapter 687 of the Laws of 1892, repealing chapter 305 of the Laws of 1885, should, therefore, be read in connection with section 36 of the same act, which is as follows: “ The provisions of this chapter, and of the stock
corporation law, the railroad law, the transportation corporations law and the business corporations law, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws modified or amended according to the language employed in this chapter, or in the stock corporation law, the railroad law, the transportation corporations law or the business corporations law, and not as new enactments.”
A comparison of section 4 of chapter 305 of the Laws of 1885, and of section 104 of the Railroad Law, will clearly show that the obligations imposed by the law so repealed were within the description of the provisions which were intended to be preserved and continued by the saving clause, section 36, of chapter 687 of the Laws of 1892.
Second. The allegations of the complaint material to the questions at issue which are admitted by the answer are, that the Metropolitan Street Railroad Company is a domestic street surface railroad corporation, incorporated in 1895 under the Railroad Law, and up to April, 1902, engaged in the operation and construction of street railroads.
That the defendant was at the times referred to in the complaint a domestic corporation incorporated in 1901, under the Stock Corporation Law, and operating a street suface railroad under the provisions of the Railroad Law.
That on April 8, 1902, and for one year prior thereto, said Metropolitan Street Railroad Company operated certain lines, including those hereafter referred to as the Broad*227way line, the Sixth avenue line, the Twenty-third street line and the Fourteenth street line.
That the Fourteenth street line was leased to the Houston, West Street & Pavonia Ferry Railroad Company, a domestic corporation, about April 23, 1893, by the Twenty-third Street Railway Company and by the' Forty-second Street and Grand Street Railroad Company,'two domestic corporations, and that at the time of such lease said Houston, West Street & Pavonia Ferry Railroad Company operated the Broadway line.
That about April 30, 1900, the Broadway, Twenty-third street and Fourteenth street lines were operated by said Metropolitan Street Railroad Company.
That the Twenty-third street line was leased to said Houston, West Street & Pavonia Ferry Railroad Company on or about April 25, 1893, by the Twenty-third Street Railway Company, and that at the time of such leasing said Houston company operated the Sixth avenue line and the Broadway line.
That thereafter the Houston company was consolidated with said Metropolitan Street Railway Company.
That none of the said companies except the defendant owned, at any of the times mentioned in the complaint, any street railroad or railroad route except such as were wholly within the territorial limits of the city of New York.
That all the streets and railroads mentioned are wholly within the city of Hew York, which is an incorporated city having more than 800,000 population.
That on February 14, 1902, said Metropolitan Street Railway Company and defendant made a contract and lease, whereby all said Broadway, Sixth avenue, Twenty-third and Fourteenth street lines were leased to defendant by said Metropolitan Street Railway Company for a period of 999 years from February 14, 1902; and said lines of street railroad were described in said contract and at all the times stated were operated by the defendant under the terms of said lease.
It will be noted that none of the leases or agreements alleged in the complaint herein were in existence prior to *228May 1, 1891, and that all the lines from or to which plaintiff sought transfers were embraced in the lease from the Metropolitan Street Railway. Company to defendant of February 14, 1902,-and described therein, and were being operated by defendant under the terms thereof at the time of the failure to give transfers complained of. These allegations are admitted by the answer. It appears, however, from the answer and from exhibits, that the Broadway line was being operated under a lease made prior to May 1, 1891, at the time the lessees thereof leased the Twenty-third street line, and the conditions as to transfers at Twenty-third street and Broadway were those passed upon in the opinion in the Topham case, although it may be questioned whether the decision in that case would be strictly controlling under the pleadings herein, the plaintiff relying upon leases made subsequent to May 1, 1891, and his allegations being admitted.
As this ease may be distinguished on the first point as to the demands for transfers at all places, and- the Scudder case seems to control as to all places, with the possible exception of Twenty-third street and Broadway, the judgment will be for the plaintiff for full amount claimed.
Judgment for plaintiff.