author: "McAdam, J. By the Court.—Freedman, P. J.

text:
    JULIUS ROBERTSON, Plaintiff v. THE NATIONAL STEAMSHIP COMPANY, Limited, Defendant.

      Action for damages, to merchandise, for a deviation from the contract route of carriage, defined in the bill of lading, rule of damages in such a case.

    The controversy in this action arose out of a shipment of goat skins which the defendant undertook to transport by the steamer Wolf from Havre to London, and by the steamship Canada from London to New York. The action was, by consent, tried at special term without a jury, and the court gave judgment for §1,000, and from this judgment both parties appealed. The contract was admitted, as also the receipt of the skins in good order at the place of shipment,'and the deviation was also admitted. The skins were carried to Southampton and thence by rail to London, instead of being carried direct to London by steamer Wolf, and were not delivered in good order, but in a damaged condition.

      Held, that the facts as found (with the single exception of the amount of the damages) are supported by the evidence; and all the questions relating to the jurisdiction of the court, the right of plaintiff to maintain the action, the construction of the bill of lading and the duty of the defendant under the same, the deviation and breach of duty, and the liability of defendant in consequence thereof, as discussed in the opinion of the court below, are fully approved and sustained; but in the determination of the amount of damage there was error; yet this error, being in favor of the defendant and against the plaintiff, upon the defendant’s appeal, the judgment should be affirmed. His exceptions present no ground for reversal.
    The appeal by the plaintiff is upon the sole ground that the damages awarded were inadequate. The cause of damage was found in the defendant’s deviation from the terms of the contract, whereby the defendant became an insurer and cannot invoke the benefit of any exception made in its behalf and favor in the contract.

      Held, that, as a general rule in such a case, the damages are to be measured according to the value of the merchandise at the place of destination at the time it should have been delivered and in the condition the carrier undertook to deliver the same, pursuant to the contract, less the price to be paid for his service.

      Held, that, under the special circumstances of this case, the defendant should not be charged with more than the actual loss. It sufficiently appears that the actual loss to the plaintiff considerably exceeded the sum of $1,000, awarded by the court, and, therefore, upon the plaintiff’s appeal, a new trial should be awarded.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 11, 1892.
    Cross appeals from judgment entered in favor of plaintiff upon the decision of a judge at special term.
    The opinion of the judge at special term, referred to and approved in the opinion of the court on the appeal, was as follows:
   "McAdam, J.

The cause of action arose within the state of New York, the place fixed for performance of the contract (Burckle v. Eckhart, 3 N. Y., 132, approved in Hiller v. B. & M. R. R. Co., 70 N. Y., 225; Hibernia N. B’k v. Lacombe, 84 Ib., 378; Story on Conf. of Laws, § 280; Hilliard on Conf. of Laws, § 401), and this circumstance confers jurisdiction, though the plaintiff resides in New Jersey and the defendant is a foreign corporation. Code, § 1780; Flynn v. Central R. R. Co. of N. J., N. Y. Law Journal, March 23, 1891. The plaintiff, as transferee of the bill of lading, factor and trustee of an express trust, may maintain the action. Code, § 449; Ladd v. Arkell, 37 N. Y. Superior Ct. R., 35; Gorum v. Carey, 1 Abb. Pr., 285. The shipment consisted of goat skins, part of which were flint dried and the remainder dried by salt. They were in bales, protected by canvas covering, and were received by the defendant at Havre, according to the language of the bill of lading, ‘ in good order and well conditioned.’ This admission must be considered as referring to the exterior and apparent condition, and to the internal only so far as may be inferred from external appearances. Gowdy v. Lyon, 8 B. Mon., 112. The salty skins are apt to absorb moisture and become sweaty. The moisture generates from the centre and spreads through the hales, and if. skins become moist and sweaty they eventually decompose, go to pieces, rot. The shipment was made June 8, 1889, and the skins arrived in London seven days afterwards, and at that time several of the bales were wet and slimy, a condition they could scarcely reach at so short an interval after shipment, if properly eared for. The skins were put upon the defendant’s steamer Canada,’ arrived in New York July 2, and were discharged on the 8th. The humidity at this time was unusually high, and the defendant claims that whatever damage accrued arose from inherent vice in the thing carried. No negligence was proved other than that which may be inferred from the facts stated, and the defendant affirmatively established that from the time the goods were received upon the ‘ Canada ’ at London every reasonable care was taken of them.

The defendant is a common carrier, running what is known as the ‘ National Line ’ of steamers, and the bill of lading was a through bill from Havre to New York. The defendant, as carrier, is responsible for every injury sustained by the goods, occasioned by any means whatever, except only the act of God, the king’s enemies, perils of the seas, or causes specially exempted by the bill of lading; subject, however, to the further qualification, that it is not liable for damage arising from evaporation, ordinary leakage, natural deterioration or inherent vice of the thing carried. Angell on Carriers, § 211; Warden v. Greer, 6 Watts R., 421; Blower v. Great W. R. Co., 7 L. R. C. P., 655; Nelson v. Woodruff, 66 U. S. R., 156; Story on Bailments, § 492a. The bill of lading expressly provides that the carrier shall not be liable for damage resulting from ‘ sweating, inherent deterioration, rain, spray, or perils of the sea.’ Upon the evidence, it is clear the defendant is not hable, unless it he for deviating from the terms of the contract, in shipping the goods to Southampton, and sending them from thence by rail to London, instead of forwarding them by the steamer Wolf,’ direct to • London, as provided by the .bill of lading. If it was clear that the damage to the skins resulted from their own inherent characteristics, and that deviation had nothing whatever to do with their subsequently unpaired condition, the deviation might be regarded as of no consequence, but it is impossible to hold that the deviation may not have led to the wet and slimy condition of the skins which was discovered when they arrived at London. It is not for the court to determine whether the usual and customary route, or one prescribed by the consignor, is best suited to attain safety and dispatch. The consignor may select his own mode of conveyance, and has the right to require that the contract be fulfilled in the manner agreed. Dunseth v. Wade, 3 Ill., 285. If it is not so fulfilled, the carrier takes all the chances and assumes all the risks, and this is precisely the position in which the defendant placed itself by the deviation aforesaid. How or from what cause the skins became wet and slimy, as discovered at London, does not appear. Whether they would have fared better, if they had been forwarded by the Wolf ’ direct to London, is left to conjecture. The risk of this cannot be put upon the plaintiff, for the defendant took the chances and must now bear the loss. The contract was to carry the skins to London by the Wolf.’ This meant direct to London by water, and without change, if that was possible, and it was. The consignor was entitled to have his goods forwarded as he directed, and the failure of the defendant to perform its contract in this regard, made it an insurer and responsible for the loss. Hutchinson on Carriers, § 314. The rule is that if a carrier attempt to perform his contract in a manner different from his undertaking, he becomes an insurer for the absolute delivery of the goods, and cannot avail himself of any exceptions made in his behalf in the contract. Lawson on Carriers, p. 182; Maghee v. Camden & A. R. R. T. Co., 45 N. Y., 514.

. “ The defendant, by its breach of contract, became a wrongdoer, and having, as a consequence, assumed the liability of an insurer, must make good the damage done. It is immaterial what the usage is among shipping men as to routes, as it cannot change the express terms of a contract, which may have been inserted for the very purpose of avoiding the usage which might have otherwise controlled. The defendant had the right to bind itself by contract to carry goods from or to a point beyond the terminus of its own line. Maghee v. Camden & A. R. R. T. Co., 45 N. Y., 514. The contract for through carriage is an entirety. Lawson on Carr., § 142. The bill of lading acknowledged that the skins were in good order when received, and this is prima facie evidence of the fact, sufficient to call upon the defendant to explain why they were wet and slimy when they arrived at London, Nelson v. Woodruff, 66 U. S. R., 156, and the explanation has not been satisfactorily given. The steamer ‘ Wolf ’ belonged to the London and South Western Railroad Company, and ran in connection with it from Southampton to Havre and return. There is no satisfactory evidence showing that the consignor knew this, or that the shipment to London was via Southampton, so as to have the bill of lading construed with reference to such knowledge and all it implied. The General Steam Navigation Company ran steamers from Havre to London direct, and the inference is that the consignor believed his goods were to take that course. Sending the goods to Southampton by water, and from thence to London by rail, and to the steamer by barge, involved extra handling of the skins, a thing not calculated to do them any good. Upon the entire proofs, the plaintiff is entitled to recover. The experts have given their opinion as to the amount of damages, but the legal measure now judicially assessed is placed at $1,000, for which sum the plaintiff is entitled to judgment.

Lewis Sanders, for plaintiff.

John Chetwood, for defendant.

By the Court.—Freedman, P. J.

This action was, by consent, tried at special term without a jury. The controversy between the parties arose out of a shipment of skins which the defendant undertook to transport by the steamer Wolf ” from Havre to London and by the steamship “ Canada ” from London to New York. The court, upon the facts found, gave judgment in plaintiff’s favor for $1,000, and from this both parties appealed.

The facts as found, with the single exception of the amount of the damages, are sufficiently supported by the evidence, and the questions relating to the jurisdiction of this court, the right of the plaintiff to maintain the action, the construction of the bill of lading, the duty of the defendant under said bill of lading, the deviation and breach of duty by the defendant, and the liability of the defendant in consequence thereof, were so fully discussed by the trial judge in the learned opinion rendered by him, that no further elaboration is necessary here. I entirely agree with the views expressed and the conclusions reached upon these questions. In determining the amount of damages, however, the learned judge erred. But the error, as will be presently shown, was in favor of the defendant and against the plaintiff. Defendant’s exception to the exclusion of evidence presents no ground for reversal. Upon defendant’s appeal therefore the judgment should be affirmed*

The appeal by the plaintiff is upon the sole ground that the damages awarded are inadequate. The claim of the plaintiff is for damages by reason of the delivery to him of the goods in a damaged condition. The cause of the damage was found in defendant’s deviation from the terms of the contract in carrying the goods to Southampton and forwarding them from there by rail London, instead of carrying them by the steamer “ Wolf ” directly to London, as provided by the bill of lading. The defendant, therefore, became an insurer and cannot invoke the benefit of any exception made in its behalf in the contract. Maghee v. Camden & Amboy R. R. Transportation Co., 45 N. Y., 514. In such a case the damages, as a general rule, are to be measured according to the value of the goods at the place of destination, at the time they should have been delivered pursuant to the contract, and in the condition the carrier undertook to deliver them, less the price to be paid for his services. Sturgess v. Bissell 46 N. Y., 462; Ward v. N. Y. C. R. R. Co., 47 Ib., 29; Harris v. Panama R. R. Co., 36 N. Y. Superior Ct. R., 373; affirmed 58 N. Y., 660; Sherman v. Hudson River R. R. Co., 64 N. Y., 254.

The defendant offered no testimony whatever as to the value of the goods or the amount of damage thereto, while the plaintiff’s witnesses all united in testifying that, at the time the skins were received in New York, their market value, if sound, was 07.50 per dozen ; that there were 4,856 damaged skins, and that the damage to them was about 50 per cent, of the market value of sound skins. At that rate the total amount of damage was 01,517.50. It appeared, however, that the plaintiff, before charging the defendant with the actual amount of the loss, undertook to lessen the damage by spending some labor upon the damaged skins to make them more merchantable and to prevent further decay, and that as the result he #vas able to sell them, and did sell them, at a figure which made the amount of actual loss several hundred dollars less than 01,517.50, and several hundred dollars higher than the sum of 01,000 actually awarded. Under the special circumstances of this case I tliinV the defendant should not be charged with more than the actual loss, while, on the other hand, the plaintiff must be allowed the expenses incurred for reducing the loss below the amount which under ordinary circumstances the genéral rule would fix. The precise figures do not appear to have been given, but from the general statements that were made, it sufficiently appears that the actual loss considerably exceeded the sum of $1,000 which was awarded.

Upon plaintiff’s appeal, therefore, a new trial should be ordered.

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

Gildersleeve, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, P. J.

license: Public Domain

text:
    WILLIAM MEIGHAN, Appellant v. GEORGE K. HOLLISTER, et al., Respondents.

      Action to recover damages for personal injuries received by plaintiff, and caused by the negligence of defendants.

    In this case, the explanations given by the defendants, in their proofs on the defence, were so full that the burden of proof was cast upon the plaintiff to establish the fact or facts that, notwithstanding the explanations given,, there was a specific act of omission or commission for which defendants were responsible and caused the injury.

      Held, that the plaintiff failed to sustain this burden and the true cause of plaintiff’s injuries, and whether or not the defendants or others were responsible for that cause, were left in uncertainty and doubt, and the complaint was properly dismissed.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 11, 1892.
    Appeal from judgment entered in favor of the defendants upon the direction of the court dismissing the complaint upon the merits.

      Wilder, Wilder & Lynch, attorneys, and James M. Hunt of counsel, for appellant.

      Jacob Steinhardt, attorney and of counsel, for respondents.
   By the Court.—Freedman, P. J.

The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff in consequence of the negligence of the defendants. At the trial the theory of the plaintiff was that, while he passed along Madison avenue in front of premises owned by defendants on the afternoon of February 20, 1888, he was struck by fragments of brick or other material which composed part of one of the chimneys of defendants’ building’. Neither the plaintiff nor any of his witnesses was able to say with certainty that the fragments came from one of said chimneys or what in fact had struck the plaintiff. At the close of plaintiff’s case the trial judge refused to dismiss the complaint. The defendants thereupon proved the proper construction of their chimneys by independent contractors a short time before the accident; that they had no knowledge or notice of any defect and that no facts existed which put them upon inquiry; that at the time of the accident the painter, another independent contractor, had hung his swing scaffold around the chimney claimed by the plaintiff to have been the chimney in question, but was not at work owing to the prevalence of a heavy storm with the wind blowing at the rate of thirty miles an hour; that on the same day chimneys of other houses in that locality fell from the storm; that, after the accident, the chimneys of the defendants were examined and no part of them was gone and that there were no loose bricks on the roof of the building. Indeed the explanation given by the defendants was full and circumstantial. This cast the burden upon the plaintiff to point out that, notwithstanding the explanation given, there was after all a specific act of omission or commission' for which the defendants were responsible and which caused the injury. The plaintiff did not sustain the burden in this respect. With the exception of recalling a witness who simply testified that she did not see any scaffold when she WLed at the house, the plaintiff did not attempt to contradict the defendants’ witnesses. As the evidence thus left it uncertain what was the true cause of plaintiff’s injuries, and whether the defendants or others were responsible for that cause, the complaint was properly dismissed at the close of the whole case. Searles v. Manhattan Railway Co., 101 N. Y., 661.

As defendants’ house was a new building, and had been built under contract by a competent mason, and may be said to have been still in course of construction at the time of the accident, the doctrine of Mullen v. St. John, 57 N. Y., 567, does not apply. Nor does it make any difference under the special circumstances of this case, that the defendants as owners were in possession.

There was no error committed in excluding evidence; and no complaint was made concerning the admission of evidence.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurred.


text:
    JOSEPH A. LEINKAUF, et al., Respondents v. JOSIAH LOMBARD, et al., Appellants.

      Contract for insurance on merchandise shipped,—Seaworthiness of vessel— Partnership or corporation—When officers or agents become personally liable in directing the action of a corporation beyond its corporate powers.

      Held, that the real controversy in this action was narrowed down to three questions, namely: (1.) Whether there was a binding contract on the part of the steamship line to insure the value of the goods without any declaration of their value before the sailing of the Yidette, and if so, whether there was a failure of the steamship line to perform such contract; (2.) Whether the Yidette was or was not seaworthy, and (3.) Whether the defendants were associated in the control and management of the steamship line as individuals, or in their corporate interests and acting as officers of a corporation known as Lombard, Ayres & Co.
    There was a mass of conflicting testimony on each of these questions and each of them was submitted to the jury. Held, that, upon the whole case, there was sufficient evidence to call for such a submission. That it would have been error to have dismissed the complaint or to have directed a verdict for the defendants. That the jury having determined the questions submitted to them in favor of plaintiffs, their verdict should be held conclusive.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January, 11, 1892.
    Appeal from a judgment entered in favor of the plaintiffs upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial.
    Lombard, Ayres & Co., a "corporation, was duly incorporated under the laws of the state of New York on the 4th day of March, 1880, for the purpose of “ distilling and refining petroleum and incidentally thereto to buy, sell, manufacture, hire, let, store and otherwise deal in all materials, apparatus and products necessary or useful therefor or resulting therefrom or within the scope thereof, as such business is ordinarily conducted.” The defendants, Josiah Lombard, Marshall Ayres and Henry D. Haven were officers of said company, Lombard being president, Ayres being vice-president, and Haven being secretary.
    The corporation, finding it necessary for the purposes of their business to purchase and manufacture lumber in Mobile for making staves for barrels and shocks for ■cases in which to place petroleum, directed their agents, Bowring & Archibald, of New York City, to charter two steamships for the purpose of transporting such lumber from Mobile to New York City, and in pursuance of such direction the steamships Vidette and L. D. Baker were chartered by said agents for the corporation. The corporation, finding that its products which it was shipping to Mobile on said steamers were not enough to take up all of the freight room of said steamers, directed the agents to advertise to carry freight on said steamers from New York to Mobile under the name of the New York & Mobile Steamship Line, which arrangement was assented to by all of the stockholders of the company.
    On the 2d day of June, 1887, the plaintiffs shipped aboard the steamship Vidette, one of the steamers of said line, a quantity of merchandise to be transported on said steamship from the city of New York to Mobile. The said steamship left New York for Mobile, but while on the voyage and on or about the 12th day of June, 1887, was lost.
    The plaintiffs claimed that in the contract of shipment of said merchandise the defendants contracted to insure the same, while the defendants claimed that the said corporation contracted to insure said merchandise only upon the condition that the value of the said merchandise should be declared before shipment. The plaintiffs also claimed that the vessel was not lost by a peril of the sea but was unseaworthy at the time of the shipment of said goods, and that for that reason the defendants are liable.
    The corporation of Lombard, Ayres & Co. had the sole charge of said line, its shipments and business, receiving all the moneys and paying all the expenses, and the defendants in this action, Lombard, Ayres & Haven, had no interest whatever in said line, or in the receipts or expenditures thereof or in any liabilities therefor, except as officers and stockholders of the corporation.

      Goodrich, Deady & Goodrich, attorneys, and John A. Deady of counsel, for appellants, argued :—
    I. It is proven by the plaintiffs’ own testimony that the original contract with reference to the shipment of goods was that on the shipment the plaintiff would insure the goods, and that the agents of the line would return the plaintiffs half the premium, and that afterwards that the line or corporation would insure the goods without any extra charge. That on or about the 15th of April a conversation was had between the agent of the line and the plaintiffs in which the agent of the line stated that the insurance would not be made by the line unless the value was declared before shipment, and left with the plaintiffs certain slips or tickets on which that was printed. The plaintiff stated that they had some trouble with that arrangement and that they notified the agent of the line that unless they made a change in that arrangement with reference to declaring value before shipment that they would refuse to ship by the line. The agent of the line, Mr. Middleton, positively contradicted the statements of the plaintiffs last mentioned.
    II. The second contention of the plaintiffs was that the steamer was unseaworthy and was lost by reason of said unseaworthiness and not by any peril of the sea. The testimony on the part of the plaintiffs failed to sustain said contention and the jury seems to have found against them, on the contention, as a verdict was given for the plaintiffs for the value of the goods and ten per cent., which was the amount of loss in case of failure to insure under the contract alleged by the plaintiffs.
    III. No liability Avhatever on the part of the defendants is shown. There is no pretense that the company Avas ever called upon to pay the claim nor is it pretended that the company is not responsible pecuniarily. The only theory on which the plaintiffs sought to recover of the defendants Avas that the defendants Avere the officers of the corporation, and that the corporation had exceeded its powers in chartering the said steamers and becoming common carriers, and that by reason thereof the directors of the company became personally liable. The answer to that is two-fold. 1st. The corporation did not exceed its powers. All corporations exist for certain purposes only. If their poAvers are not expressly they are impliedly restricted to such only as are necessary for the due attainment of those objects. An incidental power is one that is directly and immediately appropriate to the execution of the specific power granted. The question is whether it is ultra vires as being beyond the power of the directors to bind all the stockholders. In the case of the Eastern Railway Co. v. Hawkes, 5 House of Lords Cases, 381, the court says : The decisions do not authorize directors to bind the companies by contracts foreign to the purposes for which they were established, but they do hold companies bound by contracts duly entered into by their directors for purposes for which they have treated as Avithin the objects of their acts and which cannot be clearly shown not to fall Avithin them.” In Shrewsbury & Birmingham Ry. Co. v. Northwestern Ry. Co., 6 H. L. Cases, 113, the court says : “ You must show that the particular contract is one which the corporation had no power to enter into; it must be shown on the face of the contract to be a breach of duty, something foreign to the object for which the company was created. Prima facie, all its contracts are valid, and it lies on those who impeach any contract to make out that it is avoided.” 3 Mac. Q., 382-418. In the absence of proof there is no legal presumption that the law is violated. Chatauqua Bank v. Risley, 19 N. Y., 369. Corporations are liable for contracts entered into by their directors for purposes for which they have treated as within the objects of their acts, and which cannot clearly be shown not to fall within them. Eastern R. Co. v. Hawkes, 5 House of Lords Cases, 297. In the case of Bissell v. Mich. Southern Ry. Co., 22 N. Y., 258, the court considered exhaustively the question of idtra vires, and in its opinion (by Comstock, J.) says, at page 264: “ Like natural persons they (corporations) can overleap the legal and moral restraints imposed upon them; in other words, they -are capable of doing wrong. To say that a corporation has no right to do unauthorized acts is only to put forth a very plain truism; but to say that such bodies have no power or capacity to err is to impute to them an excellence which does not belong to any created existences with which we are acquainted. The distinction between power and right is no more to be lost sight of in respect to artificial than in respect to natural persons.” We contend that the power to charter vessels was certainly within the powers granted to the corporation by its charter, and that the taking of freight for other persons besides the corporation was for the purpose of lessening the expenses of running the steamers and thus making money for its stockholders. 2d. The plea of ultra vires by a corporation is intended as a shield and not as a sword. It is for the sole benefit of the stockholders, and no one but a stockholder could take advantage of said plea, and the stockholders can waive said plea and do waive it by a knowledge of and acquiescing in the acts which are claimed to be idtra vires. In this case every one of the stockholders knew of and assented to the acts, and therefore they could not take advantage of said plea nor could the company, and so the court charged the jury. If the officers or trustees of a corporation do an unauthorized act or incur indebtedness which would not create a corporate liability, the stockholders may subsequently ratify and thus validate the transaction. Martin v. N. F. P. Co., 122 N. Y., 165; see also: Welch v. I. & T. N. Bank, Ib., 185; Palmer v. C. H. Cemetery, Ib., 431; Duffy v. O’Donovan, 46 Ib., 223. Indeed, no action was ever commenced against the company on the claim nor has the doctrine of id ira vires ever been asserted by either the corporation, the stockholders or anybody else, except the plaintiffs. Even if the contract was ultra vires merely, there is no occasion to deny to the plaintiffs the benefit of its provisions, since the validity of it is recognized by the plaintiffs, and performance accepted by the plantiffs. Rider v. Roche, 97 N. Y., 278; Parrish v. Wheeler, 22 Ib., 494.
    IV. Conceding for the purpose of the argument that the act could be ultra vires on the part of the corporation, how are the defendants liable ? The learned justice who tried the case seemed to place the liability of the defendants on the ground that they received the profits and paid the expenses. But all of the testimony in the case on the part of the plaintiffs as well as on the part of the defendants shows that the defendants had no interest whatever except as officers; that all of the business were paid by the corporation and all of the expenses of the profits or receipts paid to it, and we confidently assert that no act or omission on the part of the defendants has been or can be shown which raise any liability on the part in this action.
    V. “ The plea of ultra vires can only be interposed by a corporation and not by an individual dealing with said corporation.” See Bissell v. M. So. Railroad Co., 22 N. Y., 258. It is now well settled that a corporation cannot avail itself of the defense of ultra vires where the contract has in good faith been fully performed by the other party and the corporation had the full benefit of the performance and the contract. Woodruff v. Erie Ry. Co., 93 N. Y., 609.

      Horace H. Deming and William F. Kip, attorneys and of counsel, for respondents, argued :—
    I. The condition as to declaration of value and stamping the bill of lading before sailing was no part of the plaintiffs’ contract with the steamship line. The hill of lading is silent on the subject of insurance, and therefore does not exclude evidence as to a contract between the parties in regard to insurance, a subject to which it does not refer. The rule is laid down in Blossom v. Griffin, 13 N. Y., 573. The oral negotiations leading to the very contract which the 'parties consummated by reducing it to writing are excluded by the rule, but it does not exclude an antecedent parol agreement of a different character, and impressing a different, but not inconsistent, obligation. Field v. Munson, 47 N. Y., 241; Schroeder v. Frye, 114 Ib., 269. Where a special contract is made for transportation, and goods are actually shipped thereunder, the issuing of a bill of lading differing from the contract is of no effect. Nelson v. Hudson River R. R., 48 N. Y., 498.
    II. The Vidette was un seaworthy. The question of the negligence of the defendants as common carriers, and of the unseaworthiness of the Vidette, was properly left to the jury, who found that the Vidette was lost on account of her unseaworthiness, and not on any other account, and that this unseaworthiness was due to the negligence on the part of the defendants in allowing the Vidette to go to sea in the condition she was in, and incompetent to resist the ordinary attacks of wind and weather. That the jury had the right to infer unseaworthiness at the beginning of the voyage was apparent from the fact first brought out in the evidence of the plaintiffs that, the vessel sprang a leak by no extraordinary stress of weather or perils encountered. This question of unseaworthiness was entirely a question of fact for the jury to determine. The proofs go to sIioav, and in the jury’s mind did show, that the Vidette must have been unseaworthy, and that her loss was not due to any storm or stress of weather, hut to defects existing before sailing. The plaintiffs’ testimony raised a presumption that the vessel was unseaworthy, and the jury found that this presumption Avas not overthrown by the testimony of the Avitnesses. Walsh v. Washington Ins. Co., I. and S. Co., 32 N. Y., 436; Wright v. Orient Mut. Ins. Co., 6 Bos., 269. And this testimony was also sufficient, in the mind of the jury, to prove a breach of duty of the defendants and their negligence as common carriers; for that the defendants Avere common carriers is beyond, question, as the evidence ubique shows, and to this there is no contradictory evidence. In fact, the name New York and Mobile Steamship Line was given to advertise it for the business of carrying merchandise. That name Avas apparently, to the jury, simply a cover for the defendants, and marked the name of their joint venture. It is noticeable that not a single exception was taken to the charge to the jury as to the seaworthiness of the vessel, or the rule of damages in case the jury found the vessel unseasvortliy, viz., the value at Mobile, the port of delivery. The jury found this to be the insurance value, viz., $8,319.08, without interest. And, as noted, there was plenty of evidence to sustain the jury’s finding that the boat was unseaworthy.
   By the Court.—Freedman, P. J.

The controversy in this case arose out of a contract made by the plaintiffs with an agent of the New York and Mobile Steamship Line for the transportation of certain goods by that line from New York to Mobile. Under this contract the goods were placed on board of the Vidette, one of the steamers, of said line, which started from the port of New York bound for Mobile and was lost at sea. The action was brought to recover the value of the goods. The New York and Mobile Steamship Line was a common carrier, for hire, between New York and Mobile, but was not a corporation as its name might imply.

Upon the trial the real controversy Was narrowed down to three questions, namely: (1.) Whether there was a binding contract on the part of the steamship line to insure the value of the goods without any declaration of their value before the sailing of the Vidette, and if so, whether there was a failure of the steamship line to perform it; (2.) whether the Vidette was or was not seaworthy, and (3.) whether the defendants were associated in the control and management of the steamship line as individuals or in their corporate interests and acting as officers of a corporation known as Lombard, Ayres & Co.

There was a mass of conflicting testimony on each of these questions, and each of them was submitted to the jury. Upon the whole case there was sufficient evidence to call for such a submission. It would have been error to dismiss the complaint or to direct a verdict for the defendants. The disputed questions of fact were submitted to the jury under instructions which, taken together, fully and fairly guarded every right which the defendants had, and the jury having determined the questions submitted to them in favor of the plaintiffs, their verdict, in the absence of error, should be held conclusive. An examination of the exceptions taken discloses no error which calls for reversal.

The judgment and order should be affirmed, with costs,

Gildersleeve, J., concurred.


author: By the Court.—McAdam, J.

text:
    THE CONTINENTAL NATIONAL BANK OF BOSTON, Appellant v. HENRY W. STRAUSS, Impleaded with others, Respondent. (Two Actions, Nos. 1 and 2.)

      Partnership and partners, general and special; the relations and character of each to creditors and to each other—Interference.

    This action was brought upon a promissory note made by Nathan Klein and indorsed by the firm of A. Hoexter & Co. The firm of A. Hoexter & Co. was a “ limited partnership," formed under the laws of this state, and consisted of the defendants Augustus Hoexter and Leo W. Hoexter, as general partners, and. the respondent I-Ienry W. Strauss, as special partner. The plaintiff seeks to hold the respondent liable as a general partner for the following reasons : 1st. Because Leo W. Hoexter was a minor; 2nd. Because the affidavit on the formation of the special partnership falsely stated that the respondent contributed $50,000, in cash; 3d. That respondent had interfered with the business of the firm in violation of the statute by commencing an action in the Court of Common Pleas and had himself appointed receiver of the firm; 4th. That by such proceedings he had dissolved the firm prior to the expiration of the term set forth in the certificate of its formation, and 5th. That the respondent did not allege in his answer nor show by proof that the partnership was dissolved by the act of the parties prior to the time limited, and that the $50,000 capital, alleged to have been contributed by him, had been used or exhausted in the business.
    The court held, on these points, as follows: The first is untenable. The policy of the law is to encoiu-age and protect infants; hence, they are capable of entering into a partnership, since it cannot be universally affirmed that it may not be for their benefit. The partnership contract of an infant is not void, but voidable only, and the defence of infancy is a personal privilege on the part of the infant only, and no one but the infant can take advantage thereof. The partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement. There is nothing in the law relating to limited partnerships prohibiting or preventing infants from becoming a general partner therein, nor relieving a special partner from liability for their contracts in the same.
    The second point is without proof to support it.
    The third point is without merit. The action brought in the Common Pleas, was brought in interest of the creditors and for the preservation of the trust funds of the partnership, and was not such an interference by the special partner as makes him liable as a general partner.
    The fourth point is without force, because if the partnership was dissolved prior to the term fixed it was dissolved by reason of the insolvency of the firm and by operation of law, and not by the voluntary acts of its members.
    As to the last point, whether the $50,000 of special capital was exhausted or not, was fully answered by the records offered in evidence by the plaintiff that established the fact thfit the obligations against the firm were more than sufficient to exhaust the entire capital, general as well as special.
    The onus probande, was upon the plaintiff to prove such irregularities as made the respondent liable as a general partner, and failing in this, the trial judge properly dismissed the complaint as to respondent. If the onus of proving the special partnership had fallen upon the respondent, he would have been required to produce the best evidence of the same, namely, the original papers, etc., but when, as in this case, the plaintiff, without objection, proves a special partnership without the formality of the production of the original papers, the evidence with all the presumptions following it, must be acted upon as if the best evidence had been produced.
    Interference by a special partner which makes him liable as a general partner, must be something more than mere observation or such incidental supervision and advice which a person, having capital invested in a firm, would naturally give to an enterprise in which the greater part of his fortune may be invested. Such interference means active participation and domination in and over the affairs of the firm. The interference which makes a special partner liable as a general partner is not a legal but an illegal interference, the one being fully authorized by law, the other not. In the present case there was no interference contrary to the provisions of the act, but only such interference, and in such manner, and to the extent that is expressly authorized thereby:
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeals by the plaintiff from judgments entered in favor of the defendant Strauss after the dismissal as to him of the plaintiff’s complaint at trial term.

      B. F. Watson, attorney and of counsel, for appellant.

      Townsend, Dyett & Einstein, attorneys, and B. E. Einstein of counsel, for respondent.
   By the Court.—McAdam, J.

The questions involved in both appeals are substantially alike, and in disposing of them we will take the facts of one case, for the law applicable to that applies equally to both.

The action was brought upon a promissory note- made by the defendant Klein for $2,749.81, dated October 23, 1884, payable six months after date, and endorsed by the firm of A. Hoexter & Co. The firm of A. Hoexter & Co. was a limited partnership ” formed under the laws of this state, and consisted of the defendants, Augustus Hoexter and Leo W. Hoexter, as general partners, and the respondent, Henry W. Strauss, as special partner. The plaintiff seeks to hold the respondent liable as a general partner. The complaint was dismissed as against the respondent on the ground that the evidence did not establish that he Avas hable as a general partner. The partnership of A. Hoexter & Co. was formed on EBy 1, 1884, for the purpose of carrying on the business of manufacturing and selling men’s collars and cuffs. The certificate of partnership provided that the respondent should contribute the sum of $50,000 in cash; that the principal place of business of the partnership should be in the city of New York, and that the partnership should commence on the first day of May, 1884, and terminate on December 31, 1886.

The complaint did not allege an attempt to form a limited partnership, nor the defects which rendered the special partner liable; but this was not necessary, as it is sufficient to charge him as a general partner, and upon the trial to show that as to creditors he is such. Sharp v. Hutchinson, 100 N. Y., 533; See Loomis v. Hoyt, 52 N. Y. Super. Ct., 287.

At the close of the testimony the appellant contended that the respondent was liable as a general partner for the following reasons : 1st. Because Leo W. Hoexter was a minor. 2d. Because the affidavit on the formation of the special partnership falsely stated that the respondent contributed $50,000 in cash. 3d. That the respondent had by commencing an action in the Court of Common Pleas, and having himself appointed receiver, interfered with the business in violation of the provisions of the law affecting limited partnerships. 4th. That by such proceedings he had dissolved the firm prior to the expiration of the term set forth in the certificate of its formation. 5th. That the respondent did not allege in his answer or show by proof that the partnership was dissolved by the act of the parties prior to the time limited in the certificate, and that the $50,000 capital alleged to have been contributed by him had been used or exhausted in the business.

We will consider these points in the order in which they are made. The first is untenable. The policy of the law is to encourage and protect infants, hence they are not incapable of entering into a uartnership, since it cannot be universally affirmed thauit may not be for their benefit. Story on Part., § 7.

The partnership contract of an infant is not void but voidable only, and the defence of infancy is a personal privilege. Avery v. Fisher, 28 Hun., 508; Slocum v. Hooker, 13 Barb., 536; Baldwin v. Van Deusen, 37 N. Y. 487; Hangen v. Hachmeister, 49 Super. Ct., 34; Lindley on Part., vol. 1, p. 74.

In Avery v. Fisher, supra, the court said : The fact that the copartner who made the assignment in this case was at the time an infant does not invalidate the assignment, for the reason that infancy is a personal privilege, and no one but the infant can take advantage thereof; and for the further reason that infancy does not incapacitate a person from becoming the agent of another. Where a partnership is created between an adult and an infant, the relation of mutual agency growing out of the partnership relations exists to the same extent as if both the parties were adults. The contract of partnership being legal and. binding joer se upon the adult, and equally so upon the infant until disaffirmed, by him, it follows that the partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement.” In Slocum v. Hooker, 13 Barb., 536, it was held that an infant contract of partnership was binding upon him until disaffirmed by him, and that consequently he was a necessary party to an action against the partnership.

The statute provides that limited partnerships may be formed by two or more persons, upon the terms, with the rights and powers, and subject to the conditions and liabilities herein prescribed.” 2 Birdseye’s R. S., 2169, § 1. There is nothing in the act preventing infants from becoming general partners, nor making the special partner liable for their contracts.

There is nothing in the record which shows that the infant repudiated the contract of partnership or attempted to avoid any of its obligations ; so that, the questions that might have arisen, had he elected to disaffirm the same, do not arise nor call for decision.

The second point raised is without proof to support it and, therefore, requires no further comment.

The third point as to the effect of the Common Pleas action in which the respondent had himself appointed receiver, is also without merit. It is only necessary to say that that action was brought in the interest of the creditors and for the preservation of the trust funds of the partnership, and was not any such interference by the special partner as makes him liable, under the provisions of the statutes, as a general partner.

The fourth point is without force, because the partnership if dissolved prior to the time set forth in the certificate of its formation, was dissolved by reason of the insolvency of the firm and by operation of law, and not by the voluntary acts of the parties.

The fifth point as to whether the $50,000 in capital, alleged to have been contributed, was exhausted or not, it is only necessary to say that the records offered in evidence by the plaintiff show that the firm was insolvent, and that the obligations against it were more than sufficient to exhaust the entire capital, general as well as special.

Upon the trial it was made clear that the respondent Strauss was a special and not a general partner. The plaintiff undertook to prove partnership by showing that Strauss’s name appeared upon a sign in front of the defendants’ place of business, but the witness testified that it so appeared as special and not as general partner. The plaintiff thereafter offered in evidence a deposition, made by Strauss, and by it it appeared affirmatively that Strauss was a special and not a general partner. So that there was really nothing to go to the jury upon any of the questions involved in the case. On this proof, it was not necessary for the respondent Strauss to show that he had literally complied with the provisions of the law in regard to limited partnerships. There being a limited copartnership presumptively all its provisions were complied with ; for the law will not assume in the absence of proof, that a man does an unlawful act, but will assume that he has performed his duty. The onus was, therefore, upon the plaintiff to point out the irregularities in the partnership which made Strauss liable as a general partner; not having pointed out or proved any such irregularities, the trial judge properly dismissed the complaint as to him, and there is no force whatever in the exception taken to this decision. The plaintiff argues, that the existence of the special partnership could be proven against the plaintiff in one way only, i. e., by showing compliance with the statute. Ropes v. Colgate, 17 Abb. N. C. 136; Van Ingen v. Whitman, 62 N. Y., 513. This is true as an abstract proposition, but the mode of proof and the onus in this instance were changed by the plaintiff’s own evidence. The complaint charged that Strauss was a member of the firm of A. Hoexter & Co. Strauss denied that he was a member therein except as special partner. Strauss’s interest as special partner, and his contribution of $50,000 capital as such, were set forth as the title upon which he based his right in the Common Pleas action, to call upon the general partners to account for their mal-administration of the trust. The proofs offered by the plaintiff, made out as against it, a prima facie case of limited partnership, sufficient to call upon it to point out the errors or irregularities in the formation of the firm, that made the special partner liable, if any such existed. In other words, the law would not presume, in the face of this evidence, that Strauss had illegally formed the limited partnership or had done any wrong.

The law infers that every man does his duty, has not incurred a penalty, and has complied with the law. This presumption aided by the proofs offered by the plaintiff that Strauss was a special partner, and had contributed $50,000 as such to the capital of the firm, and that a limited partnership Avas formed pursuant to the provisions of the revised statutes of this state” (fol. 106) means that it was legally formed under said statutes—not illegally or irregularly. See Leland v. Cameron, 31 N. Y., 121. This dispensed with the production of the certificate of formation required by Section 8 of the Statute, because the special partnership was sufficiently proved by the plaintiff Avithout requiring the corroborating evidence of the papers themselves. If the onus of proving the special partnership had fallen on the defendant, as it generally does, the defendant could have been required to produce the best evidence of it, i. e., the original papers themselves, but where a plaintiff without objection proves a special partnership under the statute ” without the formality of producing the original papers, the evidence, when once in the case, with all the presumptions following it, must be acted upon as though the best evidence of which the thing is capable had been produced. The plaintiff did not call for better evidence of the special partnership, indeed at no time denied it, and the entire theory of the plaintiff’s case as presented at the trial was that Strauss, although only a special,” had for some reason, not made clear, rendered himself liable as a general ” partner as to creditors of the firm. The plaintiff also contended that the defendant was bound to show that his contribution of $50,000 as a special partner, was used, or had been exhausted in the business. But this was not necessary. A special partner who contributes to a firm an agreed amount of capital, is not responsible for the manner of its use by the general partners, nor is he bound to show what they did with it. They become trustees with regard to it, and the person paying them the money is not responsible for their misapplication of it.

If the special partner is not to interfere with the business ” it would be next to impossible for him to regulate the use of the money contributed by him. This is one- of the things the special partner, or a creditor in a proper case may by bill require the general partners to account for, where fraud and mal-administration are charged against them. The property of a limited partnership, after insolvency, is deemed a trust fund for the benefit of all the creditors ; if the partners neglect to place it in the hands of a proper trustee for distribution, any creditor may proceed at once, in equity, for the appointment of a receiver and distribution. Innes v. Lansing, 7 Paige, 583; Whitewright v. Stimpson, 2 Barb., 379. The special partner may in a proper case invoke the same remedy.

True, section 17 of the act provides that if he (the special partner) shall interfere contrary to these provisions he shall be deemed a general partner.” But section 18, provides that “ the general partners shall be liable to account to each other, and to the special partner, for their management of the concern, both in law and equity, as other partners now are by law.” As was held, in Hogg v. Ellis, 8 How., 474, “ This liability to account must be proper and necessary, as well after the dissolution of the partnership as before, and must, therefore, have been intended to apply to both cases. It is a liability to account in the same manner as other partners are, that includes the liability to have a receiver appointed when it would be done in ordinary partnerships.” A bill may be filed by one partner for a receiver, founded on some breach of duty by the other members of the firm (Colly on Part., § 384), and the receiver, if appointed, represents the partners and their creditors and holds the assets of the firm as a trust fund for their benefit. It certainly cannot be deemed an unlawful interference with the rights of the general partners or their creditors, for the special partner, to file a bill, the object of which is to preserve the partnership assets for their benefit from waste or misuse.

Limited partnerships formed under the statute are governed, and the mutual rights, duties and liabilities of the partners are regulated by the common law, in every respect not taken out of the general rule by the statute. Ames v. Downing, 1 Bradf., 321; Jacquin v. Buisson, 11 How., 385. The interference by a special partner, which makes him liable as a general partner is something more than mere observation or that incidental supervision and advice which a person having capital invested in a concern would naturally give to an enterprise in which perhaps the greater part of his fortune was invested. It means active participation or domination.

Thus, in Lewis v. Graham, 4 Abb., 106, the court held, that a special partner of a firm with whom property is pledged, is not incapacitated by his relations with the firm from purchasing the pledge at a sale made by them. Speaking of the special partner, the court (at p. 113) said : " He did not direct or aid in the sale of the securities. An attempt to interfere with the sale of them would have made him liable. A refusal to do so would not involve him in any neglect of duty. . . . The special partner. . . . may advise as to the interest of the partnership, but so may any one else. Such advice is no act or control of the partnership funds or duties.”

In the Madison Co. Bk. v. Gould, 5 Hill, 312, 313, the court said : “ The special partner may examine and advise in relation to the management of the partnership concerns, but he shall not transact any business on account of the partnership, nor be employed for that purpose as agent, attorney or otherwise. If he shall interfere contrary to these provisions, he shall be deemed a general partner (§ 17).” In the case cited, the court found that the special partner went beyond giving advice, and actively participated in the business of the partnership contrary to the section of the act referred to, and “ thereby lost his character and protection as a special partner.” So in First Nat. Bk. of Canandaigua v. Whitney, et al., 4 Lans., 34, where during the existence of a limited partnership, the special partner bought out the entire firm property, and continued the business in his own name, for his own account. This was held to be an interference with the firm business contrary to the provisions of the act, that rendered the special liable as a general partner on debts contracted by the firm.

In the present case, there was no interference with the partnership, contrary to the provisions of the act, but only in the manner and to the extent expressly authorized thereby.

The interference which makes a special liable as a general partner is not a legal, but illegal interference, the one being authorized and the other not.

The dissolution of a limited partnership, prior to the expiration of the term set forth in the certificate of its formation, except in the manner prescribed in the act, may render a special liable as a general partner, that is provided the dissolution be a voluntary one, but where it proceeds from involuntary causes, the result stated does not follow- Thus, (1.) the death of one of the partners within the period fixed for the duration of the agreement dissolves the limited partnership, Ames v. Downing, 1 Bradf., 321; Jacquin v. Buisson, 11 How., 385; Troubat on Lim. Part., § 428). (2.) It may perhaps terminate by the extinction of its assents which constitute the capital upon which its business must be done. Story on Part., § 280. (3.) It may be dissolved by decree of the -court, or by act of the law, for wilful acts of fraud and bad faith, gross instances of carelessness and waste in the administration of the partnership by one or more of the general partners (Colly on Part., § 281), and this, at the instance of any other general partner free from fault, the special partner or any creditor of the firm interested in the application of the firm property as a trust fund for the payment of the firm’s debt. These acts of dissolution not proceeding* from the wrongful conduct of the special partner do not charge him with the liability of a general partner, and there is nothing in the act relating to limited partnership that was intended to charge him with liabilities for a dissolution caused by any of the involuntary acts or things stated.-

The case is full of technicalities, yet substantial justice was done, and the rules of law properly observed.

We find no error that requires a new trial, and the judgments appealed from must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


text:
    WILLIAM PALM, Appellant v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondent.

      Action to recover a penalty o/$50 together with excess of fare charged under chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.
    The court below held that the facts in the case did not show any violation, of the provisions,of the acts in question, nor that the penalty therein provided had been incurred, or that the defendant had been brought within the terms of the statutes, and the complaint was dismissed, and on appeal the decision and judgment was affirmed. The facts and conclusions in the case, fully appear from the opinion of the court and the points of counsel.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from a judgment entered upon the decision of the court at special term without a jury.
    This is an appeal from a judgment entered upon a decision of Judge Dugro, rendered after a trial before him without a jury.
    The action was brought to recover a penalty of fifty dollars incurred by the defendant under the provisions of the act entitled, “ An Act to prevent extortion by railroad companies,” Chap. 185 of the Laws of 1857, as amended by Chap. 415 of the Laws of 1886, together with the excess of fare charged, amounting to fourteen cents.
    The act is as follows :
    | 1. Any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same, but it shall be lawful, and not construed as extortion, for any railroad company to take the legal rate of fare for one mile for any fractional distance less that a mile; and every action brought to recover said fifty dollars and excess of fare shall be brought within one year after the accruing of the cause of action. But it shall be a defence in any such action if the railroad company shall show to the satisfaction of the court that such overcharge shall have been made through inadvertence or mistake not amounting to gross negligence.
    On a previous trial of this action before Judge Truax: without a jury a decision was rendered in favor of the plaintiff. On appeal to the general term the court held that it was incumbent on plaintiff to show the actual and due formation of the corporation (the Harlem and Portchester Railroad Company) under and pursuant to the General Railroad Act, and for that reason a new trial should be had. The opinion of the court is reported in 58 N. Y. Superior (26 J. & S.) R., 502.

      R. J. Shadbolt, attorney, and E. M. Wight of counsel, for appellant, argued :—
    I. The court’s disposition of this case on the ground set forth in the opinion leaves hut a single question for discussion. On the former trial and appeal this point was argued, defendant’s counsel saying: “ They (meaning defendant) owned the land as a private individual might own it, and it requires no special authority for a private individual to build upon his own land railroad tracks and run cars thereon for the convenience of his guests or patrons. There is nothing contrary to public policy in his doing so.” The counsel further said: “ Clearly there is no limit to the rate which a person may he permitted to pay for facilities, conveniences and transportation off the road/’ This broad claim for immunity from the operation of the law the defendant is compelled to make ; and yet there is no foundation for its application of this case. The Harlem River and Portchester R. R. Co. and the defendant, as its lessee, are not private individuals, but railroad corporations—common carriers. Their power to acquire and hold this land is derived from their charters, and because of the power and authority of their corporate character they built the railroad and this spur; and it is admitted that the spur was built by the defendant upon the «defendant’s land. It was paid for by defendant. The defendant. built platforms and made it a terminal point. The defendant regulated the time and manner in which the passengers should be transported to this point and the compensation to be paid. The defendant sold the ticket at a place provided by its officers, and the ticket sold evidenced a- right of passengers, and a right of passage only, from Harlem river to the race-course and return ; and the defendant asked and received the sum of fifty cents from the plaintiff for such passage. The defendant then carried this passenger in its cars and by its engines—specially provided, they say—from Harlem river to race-course and return.
    II. It was within the defendant’s power and right as a railroad corporation to build this spur, (a.) The land was theirs. The Harlem River and Portchester Company had the right to acquire it under § 7 of chap. 703, Laws of 1866, and it also had the right to take and hold it under the General Railroad Act. They acquired it by purchase, and it passed to the defendant under the lease, (b.) The Harlem River and Portchester Railroad Company and defendant as its lessee had the right to change the route, or any part of the route, or the termini of their road, as they wished. § 23, It. R. Act 1850, as amended, chap. 634, Laws of 1886. (c.) This spur was contrary to no law, and irrespective of the statutory rights aforesaid, its building was an incident to the powers of this corporation, which could be rightfully exercised. Greerís Brice, pp. 40-87, Redfield on Railways, chap. 15, § 105.
    HI. If, however, it were possible to say that this spur, built by defendant on defendant’s land, is not a lawful work and in any sense ultra vires, it would seem that the defendant could not lawfully charge fare for transportation over it. The power to demand fare, i. e., compensation, for transportation- of passengers on a railroad is not an implied or incidental power, but is derived from statute, and can be exercised only under authority of the statute. The right to carry passengers at all comes from the statute, and the right to the price comes from the same source. So jealously does the legislature guard the charges of railroad corporations that special acts have been sought and granted by the legislature to enable railroad companies to charge for special privileges or extraordinary burdens, e. g., Sleeping Cars, ch. 125, Laws 1858; Extraordinary Elevations, ch. 536, Laws 1887; Excess Fares, ch. 38, Laws 1889.
    IV. If then, the court below was not right in sustaining this claim, it erréd in all of its refusals to find as requested by the • plaintiff, and also in the findings for plaintiff which are excepted to. Chase v. N. Y. Central, 26 N. Y., 523; Fisher v. N. Y. Central, etc., 46 Ib., 644; Johnson v. Hudson R. R. R. Co., 2 Sweeny, 298, reversed in 49 N. Y., 455, on the ground that the statute does not apply; Milnor v. N. Y., N. H. & H. R. R. Co., 53 N. Y., 363; also, the following opinion of Judge Tbuax on former trial, viz.: “ Truax, J.—The defendant is operating that portion of the Harlem River and Portchester Railroad, between the station at the Harlem river and New Rochelle under a lease. My attention has not been called to any special act that authorizes the defendant to operate said Harlem River and Portcliester Railroad, but the lease to the defendant is authorized by chapter 218 of the Laws of 1839, which declares that it is lawful for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same as may be prescribed in such contract. The act further provided that nothing in it contained shall authorize the road of any railroad corporation to be used by any other railroad corporation in a manner inconsistent with the provisions of the charter of the corporation whose railroad is to be used under said contract.’ The Court of Appeals has held that under the statute the road to which the lease is made has a right to collect the fare for transportation authorized by the charter of the railroad that makes the lease. Fisher v. The N. Y. C. & H. R. R. R. Co., 46 N. Y., 653. It therefore becomes necessary to see what rate of fare for transportation the Harlem River and Portchester R. R. Co. had a right to charge under its charter. That road was organized under chap. 763 of the Laws of 1866, as amended by chap. 722 of the Laws of 1869. There is nothing in either one of these acts fixing the rate of transportation on the Harlem River and Portchester Railroad Company, and therefore it comes within subdivision 9 of § 28 of chap. 145 of the Laws of 1850, which gives to railroad corporations the power to regulate the compensation to be paid them for transportation of passengers at not to exceed three cents per mile. Johnson v. H. R. R. R. Co., 49 N. Y., 459. And under the rule laid down in the Fisher case the defendant can charge no greater rate than the rate that the Harlem River and Portchester R. R. Co. has a right to charge, that is, three- cents a mile. But the defendant contends that because it furnished certain conveniences to passengers it has the right to charge for such conveniences. The passenger paid his fare and received in return therefor a ticket entitling him to ride from the station at the Harlem river to the station at the race track. Moreover, these conveniences are as much for the convenience of the defendant as they were for the convenience of the plaintiff. They enabled the defendant to carry a much larger number of passengers, and therefore to earn a much larger sum of money than it was able to earn by using the regular station. By the statute under which the Harlem River and Portchester R. R. Co. was organized, it was authorized to construct, maintain and operate a railroad with all necessary depots, buildings, apparatus and fixtures, and to take and appropriate private property for the construction of the said road (§ 1, chap. 763, Laws 1866). The conveniences furnished are necessary depots, buildings, apparatus and fixtures,’ and by § 18, chap. 140 of the Laws of 1850, are deemed to be acquired for public use.’ Judgment is ordered for plaintiff for fifty dollars and fourteen cents ($50.14) with costs.”

      Page & Taft, attorneys, and John E. Parsons of counsel, for respondent, argued:
    I. The claim is that the defendant is guilty of extortion. The act upon which the claim is based rests upon the provisions of a penal statute. In such a case the rule is well settled that all doubtful points are to he considered in favor of the defendant. To recover, the plaintiff must show a fair right to the penalty. He must bring himself strictly and literally within the operation of the statute. Palm v. N. Y., N. H. & H. R. R. Co., 58 N. Y. Sup. Ct. Rep., 502. The established rule of construction is, that penal statutes are to he construed strictly. Van Valkenburgh v. Torrey, 7 Cow., 252. The statute declared that the owner of every horse used for racing, with his priority or permission on bet, should forfeit the value of the horse. Held, that keeping a horse for and allowing him to he used in trotting on "a bet, was not within the section of the statute. Hall v. Sigel, 13 Abb. N. S., 178. An action can be maintained to make trustees individually liable for debts of a social organization when brought within a year after debt is due and payable. In the case below the original claim was put in suit, and the judgment recovered was assigned to plaintiff, who brought suit against defendants, but after the expiration of a year. The court held that plaintiff could not recover. “ The statute is in the nature of' a penal one, and this construction is in accordance with the maxim that the general words of a penal statute shall be restrained for the benefit of him against whom it is inflicted. Seward v. Beach, 29 Barb., 239; affirmed, 53 N. Y., 697. The legislature passed a law imposing certain restrictions on the transportion of certain classes of - articles over highways, imposing a penalty of twenty dollars for offences against it; “ one half to the complainant, and the other half to the county treasurer of Dutchess, for the benefit of the poor fund,” * * without saying’ who should sue and bring the action for the penalty. The court said: “ James A. Seward, the plaintiff, brings this action to recover five of the penalties imposed by the act, and he is bound to show some authority for bringing the action. Concede that the act has been broken, and the penalties incurred. By what right does James A. Seward institute and maintain this suit ? The law must be so construed as to give it effect, if possible, and at the same time it must be construed strictly, for it is a penal statute.” (1.) The plaintiff may not argue that the use of the spur for a railroad is not warranted by law and that for the convenience which its use and the use of the tunnel and other conveniences affords, he is not compelled to pay; that is not the question. His right depends first upon the inquiry whether for transportation over the defendant's road he has just been charged more than three cents a mile. Clearly there is no limit to the rate which a person may be permitted to pay for facilities, conveniences and transportation off the road. For the sake of discussion it may he conceded that the defendant had no right to operate a railroad over the spur. It is no part of the defendant’s own road. It is no part of the route of the Harlem River and Portehester Railroad. The defendant for operating it may he exposed to any penalties or liability prescribed for failure to comply with the requirements with reference to locating its route or for operating a railroad outside of its route. It may be unable to exercise the fight of eminent domain. All this is foreign to the question. To establish his case it was necessary for the plaintiff to make out that for transportation he was charged more than three cents a mile, and that the charge was made for transportation over the defendant’s railroad. The question is not even, whether, on the facts, he was entitled to recover. Judgment having been given against him, he is limited to the allegations contained in his complaint. It is well settled that to claim error in such case there must he an amendment of the complaint and that, in the absence of such an amendment, the court must adhere to the case made by the complaint. Day v. Town of New York, 107 N. Y., 148; Pope v. Terre Haute Car Mfg. Co., 107 Ib., 61; King v. McKellar, 94 Ib., 317; Southwick v. First Nat’l Bank of Memphis, 84 Ib., 420. There is no suggestion in the plaintiff’s complaint that the railroad between the Harlem river and Morris Park belongs to the Harlem River and Portehester Railroad Company, the defendant being the lessee. The complaint alleges that it was the defendant’s railroad over which he was transported. He wholly failed to make out his case. (2.) If it were granted that the Harlem River and Portehester Railroad did belong to the' defendant, the spur and the tunnel and the facilities which they provided for reaching Morris Park were off the road. For charging passengers for such facilities, the defendant did not become exposed to the claim that it was guilty of extortion. The station of the Harlem Biver and Portchester Railroad is at Yan Nest. During the race meetings as at other times the regular trains of the defendant were run to and from V an Nest. Upon those trains regular rates of fare were charged; they were less than three cents a mile. To reach the race-course from Van Nest station passengers were required to walk on an uncovered way. The spur and tunnel and other facilities referred to enabled them to pass from the line of the railroad under cover. The land upon which the spur is established was owned by the Harlem River and Portchester Company; it was not acquired for railroad purposes. The spur, track and the tunnel and other facilities were used for the sole purpose of accommodating passengers by the special trains to the race-course and only at the time when race meetings were held. The Act of 1846, section 4, and the General Railroad Act apply only to transportation over a railroad. This obviously has reference to transportation from station to station of the road itself. Morris Park is not, within the meaning of the statute, a station on the road. Suppose that the defendant sold a ticket at three cents a mile for transportation with an extra charge which entitled the passenger to be conveyed in a carriage or other conveyance from the station to the race-course. Surely the statute referred to would not impose the penalty. Take another case, that of an invalid passenger reaching the Grand Central Station in New York. May not the defendant provide an invalid’s chair, and for its use receive compensation? The point is hot whether, if a passenger who did not pay the extra charge used the invalid’s chair, the restaurant, the carriage or the elevator, the company could compel payment. In the cases supposed, as in this case, the passenger has found it to his interest to pay the extra charge; the company has been at the expense of the special conveniences and facilities. It is submitted that Judge Dugro did not err in holding that the extra payment did not constitute extortion, and that, it being impossible to say what proportion of the fifty cents was applicable to transportation, it was impossible to say that the legal rate was exceeded. Suppose, again, that a grand stand stood on the line of the spur. Can there be doubt that the company would be permitted to charge for the transportation with the right to use the grand stand at a rate in excess of three cents a mile ? In principle there is no difference between the use of a grand stand placed upon the spur and the use of the other advantages which the spur provides. It means to the public the prevention of confusion, great saving of time and greatly increased facility for visiting the races. All of these conditions are outside of transportation. To determine that for them compensation may not be received is to forbid a railroad company to furnish for the convenience of its passengers anything beyond mere transportation. It would prohibit the ownership of a hotel, or, as has been suggested, a restaurant, etc. It is neither within the policy nor within the letter of the law that this should be done. The extra charge is distinct from the charge for transportation. Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation. The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case :
    II. Grant, however, that the spur, tunnel and all the other facilities referred to are to be treated as part of the railroad, and yet the plaintiff cannot recover. Judge Dugro was right in his decision, that the spur was not operated under or by virtue of any provision of law which directly or indirectly made applicable to it any fixed rate of fare as that allowed by law. (1.) The defendant in respect of the Harlem River and Port-Chester Railroad is not limited to the three cents a mile mentioned in section 4 of the Act of May 11, 1846, authorizing the defendant to extend its railroad from the Connecticut line to the New York and Harlem Railroad at or near Williamsbridge, in Westchester county. It does not operate the road in question under the provisions of that act. The route of the Harlem River and Portchester Railroad lies wholly to the eastward of the railroad provided for in that act. The Act of 1846, section 1, prescribes the route by which the defendant is permitted to construct its railroad from the Connecticut state line to Williamsbridge. Section 4 provides that the defendant may construct a railroad between the points mentioned and “ fix, regulate and receive charges by them to be received for the transportation of persons and property on the said road; provided always, that such charges for transportation of any passenger and his ordinary baggage shall not exceed in the aggregate the sum of three cents per mile on that part of said road within this state. The act prescribes no penalty for violation of this provision. (2.) The only other statutory regulation claimed by the plaintiff to be applicable, fixing or limiting the compensation which railroads in this state may receive for transporting passengers is contained in subdivision 9 of section 28 of the General Railroad Act (Laws of 1850, ch. 140). The section provides: “ Every corporation formed under this act shall * * * have power * * * 9. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor. But such compensation for any passenger and his ordinary baggage shall not exceed three cents per mile.” * * This provision does not apply to the defendant. It is not a corporation formed under the Act of 1850. Here, again, it is suitable to draw the attention of the court to the consideration that it is not a question whether the defendant comes within the policy of the General Railroad Law, or whether the provisions of that law should have been made applicable to the defendant. Where the language of a statute is clear, its provisions cannot be enlarged, upon the claim that the legislature must have intended or ought to have intended something more, or something different. The sole inquiry is what has the legislature said. Potter’s Dwaris on Statutes, 193; McCluskey v. Cromwell, 11 N. Y., 593, 601; Purdy v. People, 4 Hill, 397; Waller v. Harris, 20 Wend., 561; People v. Supervisors of Greene, 13 Abb. N. C., 421; Jackson v. Lewis, 17 Johns, 475; Waterford & W. T. Co. v. People, 9 Barb., 161; People v. N. Y. C. R. R. Co., 13 N. Y., 78. Chapter 185 of the Laws of 1857, to prevent extortion by railroad companies, as amended by chapter 415 of the Laws of 1886, imposes a penalty of $50 upon any railroad company which shall ask and receive a greater rate of fare than that allowed by law.” The burden was upon the plaintiff to show that the defendant came clearly and literally within the terms of this act. To do this he was at least called upon to establish clearly and literally that in respect of the Harlem River and Portchester Railroad the defendant was limited to a transportation charge of three cents a mile. He failed. (3.) The defendant is not liable on the assumption that it occupies the same situation as its lessor. The penalty is personal. It is imposed upon the particular railroad company which, having violated the law, has become exposed to the liability. The acts of the legislature (chapters 218 of Laws of 1839 5 302 of the Laws of 1855 ; 254 of the Laws of 1867 ; 844 of the Laws of 1869) by which the defendant was permitted to become lessee of the Harlem River and Portchester Railroad do not impose upon the lessee liability for penalties which might be applicable to the lessor. There being no limitation of the rate for transportation applicable to the defendant except in respect of its main line, it is subject to no such limitation as lessee of the Harlem River and Portchester Railroad upon the claim that that company, if it operated its own road, would be exposed to the penalty.
   By the Court.—McAdam, J.

The New York, New Haven and Hartford Railroad Company was incorporated under the laws of Connecticut. The road was extended into this state by permission given by an act of the legislature (Laws of 1846, ch. 195). By section 4 of that act it was provided that the charge for the transportation of passengers should not exceed three cents per mile within this state.

By an act passed in 1866, as amended in 1869, the Harlem River and Portchester Railroad Company was incorporated for the construction of a railroad from the Harlem River to New Rochelle in the state of New York. That road was built, and runs along on the east side of the New York, New Haven and Hartford Road, and several years ago was leased to the N. Y., N. H. & Hartford R. R. Co., and has been used and operated by that company ever since.

Between the Harlem River and New Rochelle is a station called Van Nest, and about half a mile off from that station is the Morris Park race-course, and when the races were had large numbers of people went there, more than could be carried on the regular trains, and getting off at the station they were compelled to walk about half a mile to the race track. The Harlem River and Portchester Railroad Company OAvned the land on which the race track was laid, and also the land between that and the railroad, although it was not used for railroad purposes. In 1889, for the purpose of taking passengers from the station to the race-course, the defendant built a spur or branch road from the station at Van Nest to the race grounds, and has ever since, on the days of the races, run special trains from the Harlem River to the race track on this spur or branch road after leaving the railroad at Yan Nest, taking the passengers right on the grounds, issuing and selling tickets stamped “ R. C. & H. R.,” meaning Race-Course and Harlem River,” and charging fifty cents for the round trip or excursion, the distance being between five and six miles each way.

By the General Railroad Act (ch. 140 of the Laws of 1850) under which the Harlem River and Portchester Railroad Company was organized, the compensation to be charged or received by corporations formed thereunder for transporting passengers is limited to three cents a mile, and by chapter 185 of the Laws of 1857, as amended in 1866, it was enacted that if any railroad company shall ask or receive a greater rate of fare than is allowed by law, it shall forfeit fifty dollars in addition to the excess of fare paid, to be recovered by the party paying the same.

On the 20th of August, 1889, the plaintiff bought such a ticket and paid fifty cents for it, and with it, or under it, as stated in the case (Pol. 81), he rode from the Harlem River station in New York to and from the race-course on a special train, and then brought this suit to recover fourteen cents, the excess over three cents per mile, and a fifty-dollar penalty; and the question now is whether the railroad company has incurred the penalty by charging or receiving fifty cents for that excursion ticket. The spur or track built from the race grounds to Yan Nest station is not a part of the fine or route of the Harlem River & Portchester Railroad, but is a track built only for use on the days of the races, to take people from the station to and from the racecourse, by cars running to take people going to and from the race grounds only. Passengers going from the Harlem River station to the Yan Nest station were charged but three cents a mile, but people who wished to go to a place off from the line of the road were charged a little more. The company' might have run a line of stages from the station to the race-course, in which case it will not be pretended that it would be limited in its charges to three cents a mile, or that the act of the legislature, fixing the rate of fare on railroads constructed under that act, would govern. Does the fact that the railroad company made a railroad track over that piece of ground, so that cars could be switched off on it from the line of the railroad, and the passengers so carried to the race ground, make it any different ? If a separate short railroad had been built from Van Nest station to the race-course, not connected by a switch with the track of the railroad, and the passengers had been carried across by a shuttle train, it would not then have been a part of the Harlem River and Portchester Railroad, nor a road formed under the provisions of the General Railroad Act, nor would section 28 of that act have any application; and in our opinion it has no more application as it is.

The title and right of way must be acquired, and a survey and map of the route and line of a railroad incorporated under the General Railroad Act must always be made and filed. If these prehminaries are not complied with, or these proceedings are not had, it is not a railroad constructed under that act; and if it is not a railroad constructed under that act, sub. 9 of § 28 of that act does not fix the rate of fare ; for that section, by its express terms, fixes the rate of fare only on railroads constructed under that act. If then, as appears to be the case, this spur or branch road from Van Nest station to the race-course was not constructed under the General Railroad Act, and is not a part of the Harlem River and Portchester Railroad, but an independent or temporary structure, which may be used or not at the option of its builders, and may be abandoned at any time, there is no law limiting the price the defendant may charge or receive for carrying passengers upon it. At least there is no law making it penal, or giving to the plaintiff the penalty sued for in this case. It may be an unlawful structure, or an unauthorized railroad, but that fact would not give the plaintiff a right of action. It might give the state, through the attorney-general, the right to compel a discontinuance of the use of the spur or branch, as unlawful, but as no such course has been taken, the discussion of that question becomes unnecessary. The state certainly could not compel the defendant to run its trains to Morris Park race-course, for the simple reason that it was not a station on its road, nor indicated on any map or survey thereof, nor could the state for non-user of the spur or branch have forfeited the charter of the road or deprived it of any of its corporate franchises. This is one effect of the spur or branch not being within any of the provisions of the acts authorizing railways, and another is the inability of a passenger voluntarily availing himself of the special accommodations of the spur or branch recovering any penalty under such acts for compensation exacted for the extra privileges afforded.

The private spur or branch was used at the will of the defendant, as a private enterprise and only on occasions when it thought proper, and it is not subject to any of the acts regulating authorized railways, that are available to the plaintiff.

Every passenger is given the option of traveling on the road at the legal rate or purchasing for a consideration additional facilities or conveniences in addition to the ordinary transportation.

The nature of these conveniences, as distinguished from the ordinary transportation, clearly appears from the facts of this case.

The transportation of passengers over a half mile on private track off the line of the defendant’s railroad is, therefore, as foreign to the ordinary transportation business of the company as the furnishing of meals or seats in a grand stand, or the carrying in elevators or carriages. The land on which the six tracks were built might have been converted into a private road on which to carry passengers from Yan Nest station to the racecourse. The defendant preferred the more convenient arrangement of building a spur track. To do this, it is claimed, needed no statutory authority.

The defendant owned the land as a private individual might own it, and it is urged that it requires no special statutory authority for a private individual to build upon his own land railroad tracks, and run cars thereon for the convenience of his guests or patrons. That there is nothing contrary to public policy in his doing so. We do not feel called upon to decide this proposition in the present case, but if it be as argued, such a railroad needs no franchise or power from the state, the owner may operate it to suit himself and he will not be subject to the regulations and restrictions contained in the General Railroad Act. The defendant could have leased or sold this land to the owner of Morris Park, and he probably might have run the cars on the tracks without organizing a railroad company, or being forced to ask for and receive any power or aid from the state. Pie certainly would not have been subject to the provisions of the General Railroad Act, and it is urged with force that the defendant is not in a worse position.

It is entirely clear that this outside track was never intended to be a railroad under the statute conferring corporate rights, or imposing corporate obligations or liabilities, but was intended to be, and is, a temporary structure to be occasionally used for the convenience of persons desiring to go to a place off from the railroad, and to be discontinued or abandoned at any time at the pleasure of the builders.

If that branch or strip of road is not a part of the Harlem and Portchester Railroad, or was not constructed under or in pursuance of the General Railroad Act, and the charge in excess of three cents a mile was for transportation over that strip or branch road, the plaintiff is not entitled to recover that excess nor the penalty. Penal statutes must be strictly construed, and to recover a penalty a plaintiff must always make a plain case, and bring his claim within the very letter of the statutes. Hall v. Sigel, 13 Abb. N. S., 178; affd. 53 N. Y., 607; Seward v. Beach, 29 Barb., 239; Millered v. L. O. A. & N. Y. Railroad Co., 9 How., 238; Verona C. C. Co. v. Murtaugh 50 N. Y., 314; Wood v. Erie Railway Co., 72 N. Y., 198; Bonnell v. Griswold, 80 Ib., 128; Potter’s Dwaris Statutes, 243.

The court in this case has found that the sum over three cents per mile was for or because of transportation over that outside track, and the evidence warrants that conclusion. All the company charges for any distance on the line of the railroad is three cents per mile or less, and passengers on the road stopping at Van Nest station are required to pay but three cents per mile; but when, as in this case, a passenger asks to be carried from the station to a place off from the line of the road, and where the company is not obliged to take him, there does not appear to be any law forbidding the company charging' an extra compensation.

The court has found that the facts do not show any violation of the provision of Sec. 4 of chapter 195, of the Laws of 1846. That is true, for the reason, among others, that that law has no application to this case. It is not for carrying the plaintiff over that road, or any railroad incorporated under that Act, that the plaintiff paid the fare in question in this case. The road in question is the Harlem River and Portchester Railroad, incorporated under another and a different Act, and which the defendant is running as lessee.

The court also finds that the proof does not show any violation of subdivision 9 of section 28 of the General Railroad Act, chapter 140 of the Laws of 1850 (Fol. 165), and this presents the whole question.

If the views before expressed are correct, that the branch road from Van Nest Station to the race track is not a railroad constructed under the General Railroad Act, then this finding is correct, and the plaintiff to recover was bound to show that it was, or at least that it was constructed under some act of the legislature limiting the rate of fare to be charged to passengers carried over it, to less than the sum charged in this case, which he has failed to do.

All presumptions must be in support of a judgment, and if the statutes and the evidence in this case will bear a construction that will sustain the judgment, that construction must be given them. If the defendant was not limited by the statute, in its charges for transporting persons over that branch track, then it must be presumed that the excess over three cents per mile (the fourteen cents) was charged and received for that extra service. Besides, as the case does not show that it contains all the evidence, if there is any lacking, or not printed in the case, necessary to support the findings (although there does not appear to be) the court must presume it was given. Porter v. Smith, 107 N. Y., 531; Aldridge v. Aldridge, 120 Ib., 614.

Where there is an exception to a finding of fact on the ground that there is no evidence whatever to sustain ■the finding, it is not necessary, in order to raise that legal question, that the case contains all the evidence. Hopkins v. Phenix Ins. Co., 118 N. Y., 165. But that is not this case. The plaintiff in this case, if he claimed or wanted a finding, that the spur or track from Van Nest station to the race-course was a part of the Harlem River and Portchester Railroad, should have requested such a finding. Patterson v. Robinson, 116 N. Y., 198, 199. He did not do so, nor did he, as it looks to us, request any findings. He drew up a draft of a decision, which, however, the judge treated as requests to find, but did not adopt.

The court has not found, nor has it been proved, that there is any such station as Mount Morris Park on the line of the Harlem River and Portchester Railroad, nor that the distance that the plaintiff was carried on that railroad was less than six miles, nor that the entire charge of fifty cents was for travel on that railroad; but does find that the charge was for transportation from 134th street to Morris Park and return. (Fols. 142, 143, 144,157, 158, 159, 160, 161, 162.)

All the findings of fact that the judge did make are supported by evidence, and the second legal question (Fol. 165), on which the whole case rests, is supported by the evidence on the part of the defendant before alluded to, and by the failure of the plaintiff to prove that the burden was on him to show, to entitle himself to recover a penalty.

It follows that the judgment appealed from must be affirmed with costs.

Freedman, P. J., and Gildersleeve J., concurred.