86 N.Y.S. 871 | N.Y. App. Div. | 1904
This action is to recover a penalty upon the refusal of the defendant to furnish a passenger with a transfer ticket. The learned counsel for the appellant states in his brief: “ By agreement of the parties, the cases of David Ehrlich, Pincus Beck, Nathan Silverman, Harry Rosenberg and Louis Shargin were all tried at the same time, and verdict was rendered for each plaintiff for the sum of $50, and judgment was entered upon the verdicts, the evidence being identically the same in each case. By agreement of counsel, the case on appeal in the case of Louis Rosenberg is to control in the other cases. * * * The one appeal is to decide the rights of all the other parties.”
The plaintiffs were young lads riding in company upon a car of the defendant. The evidence shows that they asked for the transfers as passengers in good faith. There is no question but that they duly demanded the transfers, or that the transfers were not given, or that the conductor finally gave as the ground of refusal that he had theretofore given out all of such tickets. The learned counsel for the appellants makes the point that the undisputed testimony establishes that there Was no willful refusal to give transfers, and that, therefore, there was no case for the plaintiff; But one of the lads testifies: “We asked about transfers. The conductor we asked a few times. He says he has not any; he asked for fare first— We asked a few times and he refused. When we asked him at the beginning he didn’t want to give us any. When we asked him for the transfers at Flatbush and Atlantic he says he has not any when we asked him. * * * I saw him give them to somebody else. He went by us and went to the front. He started out to give out the transfers where the motorman is, up in the fx-ont, . and when he came back said ‘ I have not got any transfer-.’ I have not talked it over with anybody; never talked it over with anybody. Never talked it over with the party. Never talked it over with any ■of the boys that were with me in this little disturbance. This is the first time I ever spoke about it. I swore to this same story on the stand on the other case. * * * I say the conductor passed me before he gave out the transfers on the front, he skipped me. Before he got to the front I asked him for a transfer. He refused to give it.”
I think that Gayitor, J., correctly submitted the case to the jury, and that the judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.