It is no doubt the rule to be deduced from the decisions of this court that no action for cumulative penalties is permissible unless it is clear from the language of the act inflicting the penalty that it was the intention of the legislature to provide a penalty for each and every violation of the statute.

In People v. New York Central R. R. Co. (13 N. Y. 78) this court allowed cumulative penalties under section 39 of the General Railroad Act of 1850 for sundry omissions to ring a bell or sound a steam whistle on engines upon approaching and crossing a highway. The statute in that case contained the words "for every neglect." In Suydam v. Smith (52 N. Y. 383) cumulative penalties were allowed where a statute contained the words "for each offense." In that case Judge RAPALLO (p. 388) distinguished the case of Fisher v. N. Y. C. & H. R. R. R. Co. (46 N. Y. 644), pointing out that the act there construed did not contain words indicating that the legislature intended to permit a recovery for each offense.

In Sturgis v. Spofford (45 N. Y. 446) a cumulative recovery was disallowed, the legislative intent not appearing in the language of the statute.

In Grover v. Morris (73 N. Y. 473) a cumulative recovery was permitted. The offense was the sale of tickets in an illegal lottery. Each sale of a ticket was visited with a penalty and it was held that it was proper to unite in a single action claims to recover back moneys paid on several separate purchases.

Cumulative recoveries have not been permitted in two recent decisions in this court, where the legislative intention was not to be found in the statute under construction. (Jones v. Rochester Gas & Electric Co., 168 N. Y. 65; Cox v. Paul, 175 N. Y. 328.)

Referring once more to the language of section 104 of the Railroad Law, imposing the penalty, we find the single sentence in which it is contained opening with the words "For every refusal to comply."

It is quite obvious that the legislative intention to permit the recovery of cumulative penalties for refusal of the defendant to comply with the provisions of the Railroad Law in regard to the transfer of passengers, is as clearly manifested as in any of the cases cited.

Notwithstanding this fact a majority of my brethren are of opinion that while the rule for the recovery of cumulative penalties, as already adverted to, is firmly established by the earlier decisions of this court, yet the changed conditions in our modern life in great cities render its modification imperative.

There have been presented at the bar of this court, civil and criminal cases where the aggregate penalties sought to be recovered have amounted to enormous and wellnigh appalling sums by reason of plaintiffs permitting a long period to elapse before beginning actions. Actions of this nature have become highly speculative and present a phase of litigation that ought not to be encouraged.

The court is of opinion that if cumulative recoveries are to be permitted, the legislature should state its intention in so many words; that a more definite form of statement be substituted for the words hitherto deemed sufficient.

We intend no reflection upon the plaintiffs in the cases now under consideration, but are dealing with a great abuse which demands immediate correction.

A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.

It follows that, in each of the actions before us, the judgment should be modified and reduced so as to permit a recovery for one penalty only, without costs to either party.

CULLEN, Ch. J., HAIGHT, MARTIN, VANN and WERNER, JJ.,
Judgment accordingly.

IV.

COURT OF APPEALS.

LUKE O'REILLY, RESPONDENT, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, APPELLANT.

179 N. Y., 450.

O'Reilly v. Brooklyn Heights R. R. Co., 95 App. Div. 253, affirmed.

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York, borough of Brooklyn.

The nature of the action and the facts, so far as material, are stated in the opinion.

Per Curiam. The plaintiff was a passenger upon the Vanderbilt Avenue line of the Nassau Electric Railroad Company, and had paid his fare of five cents. He demanded a transfer ticket over the Brooklyn City Railroad Company's line from its intersection with the Vanderbilt Avenue line, in the city of Brooklyn, which was refused, and this action was brought to recover the penalty given by the statute therefor.

The history of the legislation upon the subject and the construction of the various enactments pertaining thereto are covered by our opinion in the case of Griffin v. Interurban Street Railway Company (179 N. Y. 438). That opinion covers all of the points involved herein, with one exception. It is now contended on behalf of the appellant that the Brooklyn City Railroad Company, over which the plaintiff demanded a transfer, was not a railroad "embraced in such contract" of the defendant company, within the meaning of section 104 of the Railroad Law. The defendant, the Brooklyn Heights Railroad Company, was operating the Brooklyn City Railroad and the Vanderbilt Avenue line of the Nassau Electric Railroad Company under two separate leases, one executed in 1893 and the other in 1900. The statute provides that "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." It is contended that the railroad lines of the Nassau Electric Railroad Company are not embraced in the lease made by the Brooklyn City Railroad Company to the defendant and that the Brooklyn City Railroad lines are not embraced in the lease made by the electric railroad company to the defendant, and, therefore, there is no obligation on the part of the defendant to grant transfers from one of those lines to the other. In order to determine this question we think it important to first consider the nature of the obligation of the defendant company, arising under the statute, upon its executing the lease of the Brooklyn City Railroad Company. It will be observed that the language of the statute is that "every such corporation entering into such contract shall carry," etc. The obligation to carry therefore, arises from the entering into the contract. The defendant company was the lessee and entered into the contract with the lessor, thereby undertaking to operate the roads of the lessor company. When a street surface railroad company, engaged in the operation of a railroad under the statute, leases another railroad and commences to operate the same, which roads intersect each other, the evident purpose of the act was that they should be deemed "embraced" in the contract and that passengers should be transferred from one road on to the other so as to entitle "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.” We think, therefore, that a fair and reasonable construction of the statute is that the lessee railroad, in taking a lease of another railroad, undertakes to transfer passengers from its own line to that of the leased line and vice versa. If we are correct in this construction it would then follow that when the defendant company subsequently leased the Vanderbilt Avenue line of the Nassau Electric Railroad Company it undertook to transfer passengers from the Vanderbilt Avenue line over its own road and thence, by its former lease, to trausfer passengers over the Brooklyn City lines and vice versa. In other words, the roads leased by the defendant company, in effect, became the roads of that company, operated by it, and when it leased other roads and commenced their operation the obligation was to transfer passengers over all of the roads operated by it for a single fare.

The judgment should be affirmed, with costs.

CULLEN, Ch. J., BARTLETT, HAIGHT, MARTIN, VANN and WERNER, J.J., concur; GRAY, J., not sitting.

Judgment aflirmed.

STATIONS AND STATION BUILDINGS.

I.

IN THE MATTER OF PROPOSED DISCONTINUANCE OF, THE SERVICES OF AN AGENT OF THE LEHIGH VALLEY RAILROAD COMPANY AT ITS EAST WAVERLY STATION.

September 16, 1903.

Under date of July 15, 1903, J. A. Droege, superintendent, Pennsylvania and New York division, Lehigh Valley Railroad, informed the Board that it was the intention of the company to discontinue the services of an agent at its East Waverly station. Remonstrances against such action were received from residents of the vicinity and the matter was investigated by Commissioner Baker of this Beard, who made a report that "My opinion is that this station should be maintained as a regular station with an agent." This Board notified the company that in its opinion that the station or the services of an agent thereat should not be discontinued. The services of an agent at this station have been continued. (Case No. 2972.)

II.

IN THE MATTER OF THE APPLICATION OF THE LONG ISLAND RAILROAD COMPANY, UNDER SECTION 34 OF THE RAILROAD LAW, FOR CONSENT TO THE DISCONTINUANCE OF ITS STATION AT HEWLETT.

Determination December 2, 1903.

This application, by the Long Island Railroad Company, under section 34 of the Railroad Law, for the consent of this Board to the discontinuance of its present station at Hewlett, was filed with this Board on November 21, 1901. The application stated that it was proposed to build a new station at Hewitt about 1,400 feet east of the present station. A public hearing in the matter was given by this Board in the city of New York, on December 9, 1901. F. D. Ford appeared for the applicant; Isaac M. Lawrence, W. H. E. Jay, Henry A. Kragelch, Doctor Wilson Small and Doctor Charles E. Clark appeared in opposition. After hearing evidence and arguments the hearing was adjourned to a date to be thereafter fixed. The company did not proceed further in the matter until 1903. The adjourned hearing was held by the Board at Hewlett on November 18, 1903, at which W. J. Kelly appeared for the company; George Wallace and George W. Davison appeared for property owners in favor of the application; Isaac M. Lawrence appeared for property owners in opposition; W. H. E. Jay also appeared. After hearing evidence and arguments the hearing was closed. At this hearing the company stated that the point at which it was desired to locate the new station is about 1,010 feet east of the location of the present station, instead of 1,400 feet, and said point was accepted as the proposed point of location.

After careful consideration of the matter, the Board believes that the application should be granted. It seems to it from the evidence that public interests will be best served by the location of the station at the point proposed. The application is, therefore, granted, and this Board hereby consents, under section 34 of the Railroad Law, to the discontinuance of the Hewlett station of the Long Island Railroad Company at its present location, on condition that the company construct a new station at a point about 1,010 feet east of the present location of the station and on the further condition that the company construct a covered platform from the new station to West Broadway.

The new station has not been built at the time of writing this report. (Case No. 2584.)

III.

IN THE MATTER OF THE APPLICATION OF THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY AS LESSEE OF THE FALL BROOK RAILWAY, UNDER SECTION 34 OF THE RAILROAD LAW, FOR CONSENT TO THE DISCONTINUANCE OF ITS STATION AT LINDLEY.

Determination December 14, 1903.

This application, by the New York Central and Hudson River Railroad Company as lessee of the Fall Brook Railway, under section 34 of the Railroad Law, for consent of this Board to the discontinuance of its present station at Lindley, was filed with this Board on June 11, 1903. The application states that it is proposed to discontinue the present station "and remove the same to a new site about 3,500 feet northerly of its present location, in order that the sidetracks in that locality may be connected by crossovers and a telegraph office located in the new station building, thereby insuring greater safety in the operation and movement of the trains on said railway." A public hearing in the matter was held by Commissioner Baker at Lindley on October 3. S. M. Morgan, a resident of Lindley, appeared against the application; E. F. Plunkitt and A. C. Hill, residents of Lindley, appeared in favor of the application. It appears that the company has constructed a new station at a point about 3,500 feet northerly of the location of the present station where there are two crossovers between the main track and a long siding.

After careful consideration of the matter, the Board believes that the application should be granted. The application is, therefore, granted and this Board hereby consents, under section 34 of the Railroad Law, to the discontinuance of the Lindley station of the New York Central and Hudson River Railroad Company (lessee of the Fall Brook Railway) at its present location, there being now constructed a new station at a location about 3,500 feet northerly of the present location.

The old station has been discontinued and the new station, located as above is in (Case No. 2938. See p. 150 1st vol. report of this Board for 1903.)

use.

IV.

IN THE MATTER OF THE APPLICATION OF THE DELAWARE AND HUDSON COMPANY, UNDER SECTION 34 OF THE RAILROAD LAW, FOR CONSENT TO THE DISCONTINUANCE OF ITS PASSENGER STATION AT COOPERSTOWN JUNCTION.

Determination December 21, 1903.

This application, by The Delaware and Hudson Company, under section 34 of the Railroad Law, was filed with this Board on November 18, 1903. It asks the consent of this Board to the discontinuance of the passenger station at Cooperstown Junction, on the railroad operated by the applicant, at its present location, it being proposed that a new station shall be maintained by said company at a point about one thousand feet west of the location of the present station. A public hearing in the matter was held by the Board at its office in Albany on December 21, 1903, at which L. E. Carr appeared for the applicant; no one appeared in opposition. A report in the matter was made by the inspector of the Board.

The Board believes that the application should be granted. The application is, therefore, granted, and this Board hereby consents, under section 34 of the Railroad Law, to the discontinuance of the passenger station at Cooperstown Junction on the railroad operated by The Delaware and Hudson Company, on condition that a new passenger station shall be maintained by said company at a point about one thousand feet west of the location of the present station

The old station has been discontinued and a new station, located as above, has been constructed and is in use. (Case No. 3037.)

V.

IN THE MATTER OF THE COMPLAINT OF GEORGE W. SPRINGER AGAINST THE UNION RAILWAY COMPANY, AS TO LACK OF STATION SHELTER AT BEDFORD PARK, NEW YORK CITY.

March 8, 1904.

This complaint, by George W. Springer, of Williamsbridge, New York city, against the Union Railway Company, was filed with this Board (through the mayor of New York city) on January 26, 1904. It complained of the lack of a shelter station for passengers of the Union Railway Company at Bedford Park, New York city, where a change is made from the surface cars to the elevated railroad cars. A copy of the complaint was sent to the company, which answered and a copy of the answer was sent to the complainant. After a report by one of its inspectors, this Board recommended to the company that it provide shelter at the point in question as soon as practicable. The company informed the Board that it had located "a waiting car there both day and night which is kept clean and heated." The complainant informed the Board that this was satisfactory and the case was closed. (Case No. 3074.)

VI.

IN THE MATTER OF THE COMPLAINT OF E. T. DEVOE AND OTHERS AGAINST THE HUDSON VALLEY RAILWAY COMPANY, AS TO LACK OF STATION AT WILLOW GLEN.

March 22, 1904.

This complaint, by E. T. Devoe, of Willow Glen, Saratoga county, and others, against the Hudson Valley Railway Company, was filed with this Board on January 19, 1904. It alleged that the company did not maintain a station or waiting room at Willow Glen. A copy of the complaint was sent to the company, which answered, among other things, that

"The Hudson Valley Railway Company further answering the petition of the residents of Willow Glen, alleges that the total receipts from persons going to and from Railway Company's route after careful examination of the receipt made covering a period of over thirty days last past, does not exceed in the aggregate seventy-five cents per day."

A copy of this answer was sent to complainants, who replied. After consideration of the correspondence in the matter, this Board decided not to proceed further in the matter and the case was closed. (Case No. 1904.)

VII.

IN THE MATTER OF THE COMPLAINT OF PAULINE J. LEFFLER AGAINST THE INTERBOROUGH RAPID TRANSIT COMPANY (MANHATTAN RAILWAY DIVISION), AS TO ITS SOUTH FERRY STATION.

March 22, 1904.

This complaint, by Pauline J. Leffler, of New York city, against the Interborough Rapid Transit Company (Manhattan Railway division), was filed with this Board (through the New York City Department of Health) on January 29, 1904. It alleged that at the South Ferry station of the company the space between the station platform and the car platforms was too wide. A copy of the complaint was sent to the company, which answered. A report was made by the inspector of the Board to the effect that:

"It is impossible, owing to the track and platform being on curve, to have the space between the platform and the cars any less than it now is. I would, however, recommend that, for additional safety, sliding gates be placed in the openings in the rail