31 Barb. 556 | N.Y. Sup. Ct. | 1860
At the circuit, I was of the opinion that the case was to be controlled by the contract between the plaintiff and the rail road companies, and that the contract was, simply that the plaintiff, for the consideration of $5, should have a seat and be conveyed in the first class cars from New York'to Buffalo by the Hudson river and the New York Central Bail Boads, in case he availed himself of the contract within three days, and made the journey by a continuous trip. It was assumed that the agent selling the ticket had authority to bind the Hudson river and New York Central roads, and the question was made to turn upon the contract. The ticket was produced and given in evidence by the plaintiff, and it furnished the evidence of the contract. It was the only evidence furnished by the plaintiff to the defendant of the right of the former to remain in the cars. The defendant recognized the contract, and claimed that it gave to the plaintiff no right to a seat and passage in the cars, at that time. If the ticket is to bn^regarded as the evidence of the contract, and the contract whs not illegal, then I confess that I am unable to take any other view than that taken at the circuit. The contract conferred upon the plaintiff a right of passage, to be exercised within three days, and during a ' continuous trip, only.
The plaintiff took a seat in the cars and was carried to Albany. Instead of proceeding on to Buffalo in the cars of the New York Central Bail Boad Company, he left the cars, remained in Albany six or seven days, and then took the cars and claimed the right, under the contract, to be carried to Buffalo. He certainly ha,d no such right qnder the contract,
In Cheney v. Boston and Maine Rail Road Company, (11 Met. 121,) the plaintiff purchased a ticket for a passage from Dunham to Boston. It was a rule of the defendant, that a passenger should go through in the same' train of cars. The
If I am right as to what the contract was, and that it was not illegal, then the plaintiff was not rightfully in the car after refusing to pay fare, and the conductor was right in removing him. (Sess. Laws 1850, p. 231, § 35.) I have examined Quimby v. Vanderbilt, (17 N. Y. Rep. 306,) cited by the plaintiff’s counsel, and the effect here given to the ticket as evidence of the contract is not in conflict with the opinion in that case.
The motion for a new trial must be denied.
Marvin, Davis and Grover, Justices.]