Kappes v. New York City Railway Co.

50 Misc. 534 | N.Y. App. Term. | 1906

Pee Curiam.

Plaintiff sued to recover a penalty of fifty dollars under section 104 of the Railroad Law for refusal to give a transfer. Except for certain admissions made by the defendant, the plaintiff’s case rested upon his own testimony. The defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish a cause of action. This motion was granted, and judgment for ten dollars costs was rendered against the plaintiff and in favor of the defendant. We must conclude from this record that the learned trial justice refused to believe the plaintiff, and on that ground dismissed the complaint. We can find no good reason in the record for thus rejecting plaintiff’s testimony. TTis character was not impeached and he was uncontradicted, although he gave the number of the car and of the conductor who refused to give the transfer. His story was not improbable. Plaintiff’s statement, if true, entitles him to judgment. Hnder the circumstances we think it was error to dismiss the complaint.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Hull v. Littauer, 162 N. Y. 569, 572; Littlefield v. Lawrence, 83 App. Div. 327, 329.

Present: G-ildebsleeve, Davis, and Clinch, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.