Majority
p. 35Walter J. Salomon, Plaintiff, v. New York Central and Hudson River Railroad Company, Defendant. First Department, December 4, 1914.
Headnote
Railroad — right of pledgee or transferee of non-transferable ticket to redeem the same — Personal Property Law, section 41, construed — Penal Law, section 1562, construed.A pledgee of railroad tickets, purchased upon the express condition that they are not transferable and are limited to the personal use of the original purchaser whose name is subscribed thereto, cannot compel redemption thereof upon default by his pledgor.
Section 41 of the Personal Property Law, relating to the transfer of claims, has no application.
Section 1562 of the Penal Law, regulating the redemption of railroad tickets, is expressly limited to persons “who shall have purchased a passage ticket from an authorized agent of a railroad company,” and does not authorize a transferee of a non-transferable ticket to redeem the same.
Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
In November, 1909, Dr. Joslen of San Francisco arranged
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with Dr. Talcott of New York to accept a position with the former in California, Joslen agreeing to furnish transportation for Talcott and his wife from New York to San Francisco, and to pay other necessary traveling expenses. To effectuate this arrangement, on November second, Joslen deposited with Thomas Cook & Sons, defendant’s agents in San Francisco, $350, the latter agreeing to deliver to Talcott in New York city two railroad tickets of the value of $159.50 for the transportation of Talcott and his wife to San Francisco, and to pay the remainder to Talcott in cash. Pursuant to this agreement Cook & Sons, on November 25, 1909, delivered to Talcott the two tickets hereinafter referred to, the purchase price of which was $159.50, and paid to Talcott $190.50 in cash. The foregoing facts were unknown to the plaintiff until about December 20, 1909. These tickets are identical in form. Each is headed with the following legend: “Caution. The original purchaser of this ticket having agreed that it is non-transferable, all persons are hereby notified that anyone attempting to use this ticket by imitating the signature of the original purchaser will render himself or herself liable to prosecution for forgery.” ' In the body of each ticket is the statement that it is “ good * * * for passage,” subject to the following contract: “In consideration of the reduced fare at which this ticket is sold, I, the undersigned, agree to and with the several companies over whose lines this ticket entitles me to be carried, as follows, to wit: * * * (5) That this ticket is not transferable, and I, the original purchaser, whose signature is hereon, will sign my name and otherwise identify myself as such, whenever called upon to do so by any conductor, ticket collector or agent of the line or lines over which this ticket reads; if presented by any other person than myself (the original purchaser), all title and right in or to this ticket is hereby waived, and the conductor or ticket collector to whom presented may take it up and collect fare.” Other features of the contract refer to certain conditions attaching to the ticket if punched as “limited,” but as printed in the record no such punch appears to have been made, nor is the question of the limited or unlimited nature of the ticket important. Indorsed on the back of each ticket is the following: “ This ticket good only on train No. 5 leaving New York
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9.40 A. M. 11/25 1909, and onL. S. & M. So. R. R. Train No. — leaving Buffalo 11/25 1909.” Talcott signed Ms name to each ticket on or about November 25, 1909.
Instead of using the tickets, Talcott on or about December 1, 1909, pledged them to plaintiff for a loan wMch was to be repaid on or about December 15, 1909, and upon the further agreement with plaintiff that if he failed to repay, plaintiff should have the right to redeem the tickets and apply the proceeds to the payment of his loan. Talcott defaulted on his loan and on or about December 19, 1909, plaintiff offered the tickets to defendant for redemption, which defendant refused.
Walter H. Bond, for the plaintiff.
William Mann, for the defendant.
The controversy submitted is whether plaintiff is entitled to judgment for the purchase price of the tickets. I think not. Aside from the conditions of the tickets that they were not transferable and were limited to the personal use of the origmal purchaser whose name was subscribed thereto, which conditions have been held to be valid (People ex rel. Fleischman v. Caldwell, 64 App. Div. 46 ; affd., 168 N. Y. 671 ; Bitterman v. Louisville & Nashville R. R., 207 U. S. 205 ), I think it clear that no court has power to change the contract of the parties or without fault on defendant’s part to say that the original purchaser of the ticket or any subsequent holder thereof may refuse to avail himself of the right to the transportation evidenced thereby, and demand that defendant redeem the ticket. The railroad’s agreement was to furnish transportation, which agreement could not by the mere election of the ticket holder be turned into an obligation to payback the price of the tickets on demand. (Trezona v. Chicago Great Western Ry. Co., 107 Iowa, 22 .) When a railroad has sold a ticket it has, in the absence of a statute, the right to treat the purchase price as having been irrevocably paid to it for its own uses, and so long as it stands ready to perform its contract, it cannot by any rule of the common law be deprived of the consideration money. Section 41 of the Personal Property Law (Consol. Laws, chap.
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41; Laws of 1909, chap. 45) has no application. This section reads: “ 1. Any claim or demand can he transferred, except in one of the following cases: * * *. 3. Where a claim or demand can be transferred, the transfer thereof passes an interest, which the transferee may enforce by an action or special proceeding * * *. But this section does not apply where the rights or liabilities of a party to a claim or demand, which is transferred, are regulated by special provision of law.” The ‘ ‘ claim ” in this instance is the claim for redemption, and at common law such a claim is unfounded. Furthermore, as I shall proceed to show, whatever right of redemption there is rests upon a statute which does not apply to this plaintiff. On this point the words of the court in Blake v. Griswold ( 104 N. Y. 613 , 611) are apposite. Applying the provisions of sections 1909 and 1910 of the Code of Civil Procedure, from which section 41 of the Personal Property Law was in part taken, the court there said: “The ‘ rights and liabilities’ of parties under the penal provisions of the Manufacturing Act are not only ‘ regulated ’ by special provisions of law, but are wholly created by such special provisions, and have no existence outside of the exceptional and peculiar authority and regulation of the statute. So that in the present case, as also in Brackett v. Griswold,[1] the right of transfer given by the Code does not under the same Code give a right of enforcement to the transferee, but leaves the question of that right to the existing law.” The statute regulating the redemption of railroad tickets is section 1562 of the Penal Law. The operation of this section is expressly limited to persons “who shall have purchased a passage ticket from an authorized agent of a railroad company.” It is a notorious fact that for their own special and peculiar purposes, many railroads have for years past issued non-transferable tickets limited to the use of. the original purchaser, and to make certain that they should be recognized as contracts and not as mere tokens, they have printed upon them provisions in the form of contract and have required the purchaser to sign the ticket as evidence of his acceptance of the ticket as a contract and not as a token as was done in this instance. To my mind it is clear that the Penal Law intended to preserve
* 103 N. Y. 425 .— [Rep.
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and respect this regulation which the courts have held to be reasonable and to restrict the right of redemption to the original purchaser, and did not intend to recognize the right, at least in the case of a non-transferable ticket, of any transferee to have the ticket redeemed, and thus force upon the railroad recognition of a right expressly denied by the ticket contract. It follows that there should be judgment for the defendant with costs.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Judgment ordered for the defendant, with costs. Order to be settled on notice.
Cases cited
- People ex rel. Fleischmann v. Caldwell 64 App. Div. 46 p. 37
- Bitterman v. Louisville & Nashville Railroad 207 U. S. 205 p. 37
- Blake v. Griswold 104 N. Y. 613 p. 38