104 N.Y.S. 907 | N.Y. App. Div. | 1907
. This action was brought to recover the penalty of'$§0 prescribed by section 104 of the Railroad Law for a refusal by .a street surface railroad company to deliver to a> passenger a transfer for a. continuous trip over its line and any connecting branch Operated -or controlled. by it: The plaintiff testified that at -the time- of paying his fare and afterwards he asked the conductor to give' him the transfer, and that the' conductor refused, giving ño explanation or reason. The complaint was dismissed oiji the ground that the defendant having 'provided for transfers, and: given its- conductors transfer tickets-to give .to passengers, it was not liable t,o the penalty -for the' refusal of the conductor to give the plaintiff a transfer ticket. This was error. The refusal of the conductor was that of the defend-' ant. Section 39 of the Railroad Law, which provides that any
Hirschberg, P. J., Jenks and - Hooker, .JJ., concurred; Woodward, J., voted for affirmance on the opinion of Crane, County Judge. • '
Judgment and order of the County Court of Kings. county reversed and new trial ordered, costs to abide the event.
The following is the opinion of Crane, J.:
I have decided a. case similar to this (Schwartzman v. Brooklyn Heights R. R. Co., 50 Misc. Rep. 116). The opinión . in that case I make the opinion in this, and give the reasons therein stated for granting the motion made herein to direct a verdict for the defendant.