150 N.Y.S. 702 | N.Y. Sup. Ct. | 1914
A previous judgment, in favor of defendant, has been set aside by this court in 86 Mise. Rep. 43.
Plaintiff, at Thirty-fourth street and Fourth avenue, boarded a south-bound Fourth avenue car intending to go to some point on Delancey street (about one mile
As pointed out in our previous opinion, plaintiff was entitled to be carried to his destination by the most direct route operated by the defendant. Charbonneau v. Nassau Elec. R. Co., 123 App. Div. 531. If, therefore, he had the right to further transportation southward, he was justified in his insistence on being carried by a Fourth avenue car. Respondent, ón the other hand, urges that it has a right to require passengers who board an Astor place car to transfer to and go farther south on Broadway (an avenue west of and parallel with the Fourth avenue line) even though that be a more circuitous route to their ultimate destination. It is, I think, conceivable that such a course might be excused by a due presentation of impelling circumstances and cogent reasons. Some evidence was offered by respondent, and it is not clear whether this was intended to explain the transfer to Broadway instead of to the Fourth avenue through car, or to justify an absolute refusal to transfer from a ‘ ‘ short service ’ ’ to a Fourth avenue through car. But in any event, the testimony of a foreman (over due objection) as to an alleged rule of the company was incompetent; and the cryptic reason given by him, i. e., “ To avoid congestion, for the convenience of passengers,” was valueless.
The question, therefore, arises whether plaintiff had,
The authority of the Baron case confirms my own view that under the circumstances of the case under review plaintiff was entitled to a transfer farther south on the Fourth avenue through car. I am inclined to believe that Roach v. Brooklyn Heights R. R. Co., 119 App. Div. 520, is a holding to the contrary, but, even if it be, it cannot affect our conclusions.
There is an intimation in Braffett v. Brooklyn, etc., R. R. Co., 204 N. Y. 440, 443, that a passenger in a position similar to that of the plaintiff is entitled to a transfer, but neither the Braffett case nor the cases which it cites, namely, Bull v. New York City R. Co., 192 N. Y. 361; O’Connor v. Brooklyn Heights R. Co., 123 App. Div. 784, make express reference to a “ short service ” car.
Respondent urges also that, as the transfer given to the plaintiff by the first conductor was, on its face, not
We need not decide whether the form of the transfer-slip given to plaintiff sufficiently disclosed its alleged infirmity. See Charbonneau case, supra, distinguishing Nicholson v. Brooklyn Heights R. Co., 118 App. Div. 13; and Weber v. Rochester, etc., Co., 145 id. 84. Transportation was not refused to the plaintiff merely because he failed to obey a reasonable regulation of the company, as in the Monnier case, infra, and in Mullin v. Long Island R. Co., 136 App. Div. 733. Plaintiff was ejected from the second car on the theory — which is now urged on this appeal — that he had no right to continue his journey thereon, under any circumstances. But, as he did have such right, it follows that he has a cause of action against the defendant for breach of contract of carriage. Monnier v. N. Y. C. & H. R. R. Co., 175 N. Y. 281, particularly at 288, 290. It should be noted here again that there was no competent proof in the case at bar of any regulation of the company, and, of course, none as to the reasonableness of such regulation.
Incidentally, respondent urges that this was not a “ short service ” car for the reason that Astor place is a separate terminal. I doubt whether, under the circumstances of this case, respondent’s position would be bettered even if that were so. But I do not think that the respondent can successfully maintain that the end of this short spur, some three hundred feet long, is a separate terminal. Moreover, the very inscription on the car involved in this case “Astor Place Only ” indicates the respondent’s own view of Astor place not as a terminal, but as a point on the line at which
As the determinative considerations herein above reviewed, and other points to which I have not adverted, were adequately presented at the trial below by due objections to evidence, exceptions to the charge and requests to charge, the judgment must be reversed and a new trial granted with costs to appellant to abide the event.
One other point, urged by the appellant, remains to be considered. Respondent’s counsel, on the previous trial, had conceded, upon certain terms, that if judgment were rendered in favor of plaintiff the award of damages might be $500, and plaintiff-appellant insists that such concession was binding upon the trial now reviewed. I think the stipulation, by its very terms, shows plainly that it was limited to the trial at which it was given, and is, therefore, no longer binding; but, even if that were not so, the court below at the present trial quite properly relieved the respondent from it.
Guy and Page, JJ., concur.
Judgment reversed, new trial ordered, with costs to appellant-to abide event.