If there were no other circumstances in the case, therefore, the demurrer would have to be sustained. But on examination of the complaint I am satisfied that it does not contain facts constituting a "cause of action" for a penalty. The design of a demurrer under section 488 is to compel the plaintiff to elect upon which of two causes of action improperly united he will proceed. No such election can properly be said to exist where but one good cause of action is set up. For if the other matter, which is insufficient to constitute a cause of action, could be supposed· to be elected, a demurrer would immediately lie thereto, because it did not cOllstitute a "cause of action," or the complaint could be dismissed therefor at the opening of the trial, and the result would be no action at all. Section 488 should therefore be construed to refer to cases of two or more good "causes of action" well pleaded. The words "cause of action" should be held to mean the same thing in subdivision 7 as in subdivision 8 of section 488. The claim for 8r penalty is not presented as a distinct cltuse of action separately numbered, but is presented only as a part of an entire narrative. As a cause of action it is insufficient both in form and substance. It does not set forth, refer to, or in any manner identify the statute alleged to have been violated, nor even state whether it refers to a statute of the IItate of New York, or to a. statute of the state of Connecticut, under whose laws it alleges the defendant corporation was chartered. Again, the necessary inference from all the allegations of the complaint on the subject of the excessive fare is that there was no such "demanding and receiving" of excessive fare as could be held to incur a penalty. The legal rate is alleged to be three cents per mile, the distance traveled three and nine-tenths miles, and the customary fare eight cents. The complaint shows that the plaintiff purchased no ticket before entering the cars, and that when 13 cents was required of and paid by her, the conductor gave her back a duplex ticket, which "he said was good for five cents." The plaintiff took it as such, and it nowhere appears that it was not good for five cents. The complaint goes on to state that the plaintiff being old, and her eyesight poor, she "did not read what was printed on the ticket," etc. The necessary inference from this,coupled with the conduct.or's saying that the ticket was "good for five cents," is that the printed matter upon the ticket showed bow and where the five cents was payable. If these conditions were reasonable, and such as the courts have upheld as justifiable regulations to enforce the purchase of tickets before entering the cars, then only eight cents
were in effect demanaed and received. The complaint does not state what the printed matter was, and it cannot be assumed that the directions for the redemption of the ticket were unreasonable, and it, does not appear but that the plaintiff either has already received the money for it, or may at any time do so. To incur a penalty theremust be an intentional taking and appropriation of excessive fare. H counterfeIt coin were given in making change no action for penalty would lie; and in this case the ticket for five cents given back to the plaintiff shows that no excessive fare was designed to be appropriated by the defendant. Had the ticket not been good for five cents, or had the regulations or printed conditions been unreasonable, the plaintiff was bound to allege these facts. The complaint contains, therefore, but one cause of action, and that for personal injuries, and the demurrer should, therefore, be overruled, with liberty to answer within 20 days, but under the circumstances without costs, and the irrelevant matter in reference to the penalty · . should be stricken from the complaint.
GARDNER 'V. CROSSMAN
Wircuit Court, 8. D. N6fIJ York. August 4, 1881.)
Where no sufficient reason is shown for amending an answer which a general treats as a denial of the existence Qf,the agreement set up in the complaint, the motion to amend will be dellied.
Richards tl Heald, for plaintiff. Scudder tl Gaf'ter, for defendants.
BLATCHFORD, C. J. On more careful consideration I a.m of opinion that my ruling on the objection to cross-question 895 was wrong, and that the objection ought to be overruled. As both parties acquiesced in going on in this court under the complaint and answer in the state court, without the filing of a new bill in equity in this court, and as the plaintiff treated the answer of the defendant as a general denial of the agreement set up in the complaint, by proceeding to prove such agreement as set up, it is proper that it should be so treated by this court. In addition to this I think it is a fair construction of the answer that it denies the existence of the agreement set up in the complaint. The putting in of a general replication to