Opinion
December 4, 1914.
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 original 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 pay back 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. 41; Laws of 1909, chap. 45) has no application. This section reads: "1. Any claim or demand can be 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, 617) 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, 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 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.