O’Brien, J. :
The action was brought to. recover a penalty of fifty dollars, alleged to have been incurred by the defendant by its refusal to transfer the plaintiff as a passenger at the intersection of Columbus avenue and One Hundred and Ninth street, from the railway on Manhattan avenue to the railway on Columbus avenue, both of which roads were operated by the defendant.
The complaint alleged that on or about March 19, 1898, the defendant leased the railway belonging to the Second Avenue Rail*63road Company ; that on or about the 27th day of September, 1898, the defendant owned or leased and operated the street surface railroad known as the Manhattan Avenue branch from One Hundred and Sixteenth street and Manhattan avenue to One Hundred and Ninth street and Columbus avenue, and that said road crossed the line of the Second Avenue railroad at One Hundred and Sixteenth street and Second avenue; that on the day mentioned (September 27, 1898) the defendant owned or leased and operated a street surface railroad, known as the Columbus Avenue branch, from the corner of Fiftieth street and Seventh avenue to the intersection of One Hundred and Tenth street and Columbus avenue, and that it intersected the route or line of the Manhattan Avenue branch at One Hundred and Ninth street and Columbus avenue, and ran from said point north and south over and along Columbus avenue; that on or about the 27th day of September, 1898, the defendant received this plaintiff into one of its cars on the Second Avenue line at Eighty-third street, and after paying his fare he rode on the car to One Hundred and Sixteenth street and Second avenue, where he was transferred to a car of the Manhattan Avenue branch and rode thereon to Columbus avenue and One Hundred and Ninth street; that at that point plaintiff demanded that he be transferred to a car . of the Columbus Avenue branch going south, and the defendant refused to so transfer him without the payment of an additional fare. The plaintiff further alleges, and by the demurrer it is admitted, that the defendant was organized under the Railroad Law of this State (Laws of 1890, chap. 565) and thereby became subject to its provisions. The sections of that law here applicable are sections 78 and 104 thereof, the former of which (§ 78) authorizes any railroad corporation owning or operating a railroad or railroad route within this State to contract with any other such corporations for the use of their respective roads or routes, or any part thereof, and to thereafter use the same in such manner and for such time as may be prescribed in such contract, and such contracts may be in the form of a lease or for joint operation over the respective roads. Section 104, as amended by chapter 676 of the Laws of 1892, is as follows : “ Every such corporation entering into such contract shall carry, or permit any other party thereto to carry, between any two points on the railroads or portions thereof embraced in such contract, any *64passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall, upon demand and without extra charge, give to each passenger paying one single fare a transfer entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party. The provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village.”
It will be noticed that the complaint does not allege that the defendant leased, owned or operated the Columbus Avenue road on March 19, 1898. Nor is there aught alleged from which that can be inferred or implied; and if such fact is necessary to the statement of a good cause of action then the complaint in that respect is defective. In the absence of an allegation that the defendant owned or leased or operated the Columbus Avenue road on March 19,1898, and assuming, as we must under the pleading, that it was subsequently acquired, the question presented is whether, under and pursuant to section 104 of the Railroad Law, as amended, a passenger on the Second Avenue road who was transferred over the One Hundred and Sixteenth Street route is entitled to be retransferred over the Columbus Avenue route.
The section reads “ Every such corporation entering into such contract (for a lease or for a joint operation of their respective roads) shall carry, * * * between any two points on the railroads or portions thereof embraced in such contract, any passenger desiring to make one continuous trip between such points for one single fare.” As correctly urged by the appellant, a railroad cannot be said to be embraced in a contract unless it was owned or operated by one of the contracting parties at the date of the execution of the contract. But if a corporation having leased one road subsequently leases another, the road subsequently leased is not embraced in the first contract.
*65The right of one road to enter into a contract for a lease and joint operation of another road is one given by statute and is subject to the conditions under which such right is conferred. One of these conditions is that the road operating another road by lease shall carry passengers who may have taken passage on the leased road over the lines owned, controlled or operated by the road to which the lease is made at the date when it acquired by contract the leased road. In other words, the right of a passenger to a continuous trip for a single fare extends not alone to the routes or lines ■of the leased road but also to such routes as, at the execution of the lease, were owned, controlled or operated by the corporation to whom the lease was made. The language of the section (104) is “ entitling ■such passenger to one continuous trip to any point or portion of any railroad embraced in such contract.” These words necessarily exclude roads subsequently built or acquired for they cannot be said to be “ embraced in such contract ” when they are not then in existence.
It follows that roads owned, leased or operated by the defendant on September 27, 1898, were not £l embraced ” in the contract by which defendant acquired by lease the Second Avenue road unless they were owned, leased or operated by the defendant at the date of that lease, namely, on March 19,1898'. The fact that the Columbus Avenue branch was embraced in that lease is not alleged in the complaint nor does it appear by fair inference or implication; and the complaint is, therefore, defective in not stating a cause of action and the demurrer thereto was well taken.
The judgment accordingly should be reversed, with costs to appellant, and the demurrer sustained, with costs, but with leave to the plaintiff to amend his complaint on payment of costs in this court and in the court below.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with ■costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below.