192 N.Y. 353 | NY | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *355 The action is brought to recover damages for the unlawful expulsion of the plaintiff on two separate occasions from the defendant's trains on which she was a passenger. At the time of these occurrences the defendant issued mileage books good for five hundred miles. By the contract printed in the book the ticket was good only for the person in whose name it was issued, but this provision was modified by the further one: "It will be good for use of family of the person named hereon from September 1st to June 1st only. During months of June, July, and August section 1 (that first quoted) will apply." The plaintiff was aware that according to the limitations prescribed in the ticket she could not use her husband's ticket during the three summer months and, therefore, had her husband obtain from the local passenger agent a mileage book for her individually. He stated the plaintiff's name and asked that the ticket be made out to H.M. Parish. It was issued accordingly. On the ticket was a blank for the name of the person to whom the ticket was issued and for the residence of such person. Before the name there was a capital "M" apparently to be followed in script by the letter "r" or the letters "rs" or "iss," depending on the sex and condition of the holder. In this case "r" alone was written after the capital "M," "s" being omitted, and that omission has caused the whole controversy between these parties. The plaintiff testified that on the 6th of August, 1902, she boarded the defendant's *357 train at Hobart and presented her ticket to the conductor, who refused to accept it; that she explained to the conductor that it was her ticket and that the prefix of "Mr." instead of "Mrs." was a mistake on the part of the defendant's agent. Nevertheless, the conductor, on the plaintiff refusing to pay her fare, ejected her from the train. The next day the plaintiff wrote to the general passenger agent of the defendant at Oneonta a letter complaining of her removal from the train and also of the discourteous conduct on the part of the conductor and stated fully the circumstances attending the issue of the ticket. To this letter the agent replied that if the ticket bore the name Mr. H.M. Parish the conductor had no right to honor it, adding: "Therefore so far as that part of the case is concerned you are entirely at fault, and in order to avoid further trouble you should have the ticket sent to this office for correction." The plaintiff refused to comply with the demand that the ticket be sent to the defendant's office, which was at some distance from the place where she lived, giving as a reason that she had heard of a ticket being sent there and not returned. On August 23rd she again sought passage on the train, and on tendering the ticket it was again refused by the same conductor. The plaintiff said to him that by this time he must know that it was her ticket, to which he replied that she ought to have sent the ticket back; that the agent of the company wrote her about it, and that it was "sheer contrariness" on her part. Thereupon the plaintiff was again put off the train. At the close of the plaintiff's evidence the complaint was dismissed and the judgment entered on the decision at the Trial Term has been affirmed by the Appellate Division.
The plaintiff recovered on the first trial of this action, but the judgment was reversed by the Appellate Division (
Moreover, if the defendant was at the time within the provisions of the Mileage Book Act its justification wholly fails. That statute prescribes, that any corporation operating a railroad in this state the line or lines of which exceed one hundred miles in length, shall issue mileage books for either one thousand or five hundred miles which shall entitle the holder thereof or any member of his family to travel thereon. (Laws of 1895, ch. 1027, as amended Laws of 1896, ch. 835; Laws of 1897, ch. 484; Laws of 1898, ch. 577.) The defendant was organized in 1901 as the result of a consolidation of the roads of several companies. These acts were unconstitutional and inoperative as to corporations formed prior to their enactment (Beardsley v.N.Y., L.E. W.R.R. Co.,
The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.
GRAY, HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur; CHASE, J., not sitting.
Judgment reversed, etc. *361