McCarthy v. New York City Railway Co.

Judgment affirmed, with costs, upon the authority of Johnston v. N. Y. City R. Co., 54 Misc. Rep. 642, and Nicholson v. N. Y. City R. Co., 118 App. Div. 858.

Present: Gildersleeve and Platzek, JJ.

(dissenting). This action was Brought to recover a penalty because of the refusal of the defendant company to give the plaintiff, who was a passenger upon one of its cars, a transfer as required by law. The fact that the defendant violated the law and refused the plaintiff a transfer was not denied by any witness called upon the trial. The defendant resisted the plaintiff’s claim upon the ground that the plaintiff was not a passenger in good faith, and, therefore, was not a party “ aggrieved,” within the definition of that term given by the Appellate Division in the case of Nicholson v. New .York City R. Co., 118 App. Div. 858. The plaintiff had brought several actions of a like nature against this defendant, and, whether or not, upon all the testimony, he was a party “ aggrieved ” within the decision of the Nicholson case was a question of fact to be determined by the justice, who tried the case without a jury. The trial justice rendered judgment in favor of the defendant, and rendered the following opinion: “ The plaintiff having recovered two penalties against the defendant for failure to give transfers over the same route taken by him and, therefore, knowing that transfers would be refused to him, it is fair to presume that at the time the transfer was refused he was not a passenger in good faith seeking to be transferred to a connecting line of the defendant’s road and that his sole purpose in asking for a transfer was to bring an action to recover the penalty for the refusal and that he was not thereby aggrieved.” From this opinion it is apparent that the trial justice concluded that this plaintiff was not a passenger in good faith, merely because he had recovered two judgments against the defendant for failure to give transfers over the same route. It seems to me to be wholly unreasonable to hold that an inference of bad faith arises from the fact that the plaintiff had been successful in two other actions. The plaintiff, in this case, may or may not have been a passenger in good faith, and this fact should have been determined from a consideration of all the circumstances disclosed by the evidence; and his bad faith should not have been regarded as a corollary of the fact that the plaintiff had recovered two other penalties against this defendant. If, because *210the plaintiff had recovered two penalties against this defendant “ for failure to give transfers over the same route taken by him, and, therefore, knowing that transfers would be refused him, it is fair to presume that at the time the transfer was refused he was not a passenger in good faith seeking to be transferred to a connecting line of the defendant’s road,” then it must follow that the recovery of two penalties is a bar to the prosecution of any other action for a penalty, no matter how many times his right as a passenger and the provisions of the statute may be disregarded by this defendant. Such a construction of the statute seems to me to 'be absurd. This plaintiff has a right to bring as many actions to recover penalties as there are occasions where he is refused a transfer in violation of the statute, provided, only, that he is a passenger in good faith when he is refused a transfer. The fact that he has recovered two penalties only proves that, on two other occasions when he was a passenger in good faith, the railroad company refused him a transfer in violation of law. To permit the defendant, under these circumstances, to prevent the plaintiff from recovering a third penalty for a third violation of the statute, on the ground that he has recovered in two other actions, is to permit it to take advantage of its own wrong, and succeed upon the plea that, because the plaintiff has proven his good faith twice, therefore, he must necessarily be held to have acted in bad faith when he brings a third action. To so decide is equivalent to holding that, because a person has, in two actions, proven, his good faith, in all subsequent actions he is to be presumed to have acted in "bad faith. I cannot understand any process of reasoning by which such a conclusion can be reached. In considering this case'we should not lose sight of the fact that the defendant is before the bar of this court, convicted, by the undisputed testimony disclosed by this record, of being a lawbreaker and endeavoring to avoid the payment of the penalty imposed by statute by attacking the good faith of the plaintiff. Ho evidence was offered to show that the defendant did not violate the law; and the only question is whether the plaintiff, under the construction placed upon the statute by the Hicholson case, was a passenger in good faith. *211If he was not, he cannot now, under that decision, avail himself of the right which the statute otherwise confers upon him. I do not assert that, upon the evidence presented in this case, the plaintiff was or was not a passeng'er in good faith. That is a matter that should he determined by the trial justice upon a consideration of all the evidence adduced. I do assert, however, that, because a plaintiff has recovered penalties in two actions, and his good faith in both of those actions has been established, no inference adverse to him should he drawn, from this fact alone, in any other action that he may bring.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Judgment affirmed, with costs.