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Thistle v. New York City Railway Co.

104 N.Y.S. 401 Court N.Y. App. Term Decision date 1907-05-16 English

Delivered by BRADY, J.

Contents

Majority

p. 401
THISTLE v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
May 16, 1907)

Headnote

Carriers—Street Railways—Passengers—Transfers—Sufficiency of Request.
A street railway company is not liable for refusal of a transfer, where a passenger, though desiring to transfer to a west-bound car on C. street, merely asked for a transfer to that street, and was given one to an eastbound car.
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
Action by Hattie S. Thistle against the New York City Railway Company. From a judgment for plaintiff, defendant, appeals.
Reversed, and new trial ordered.
Argued before GILDERSEEEVE, P. J., and SEABURY and BRADY, JJ.
James L. Quackenbush (Henry F. Gannon, of counsel), for appellant.
E. V. R. Ketchum, for respondent.

The plaintiff, according to her own testimony, boarded a Broadway car bound south, paid her fare, and asked for a transfer to Canal street. It does not appear from the testimony that she informed the conductor as to what direction on Canal street she desired to go. • She received a transfer. She testified that she changed cars at Canal street, boarded a west-bound car on that street, offered the transfer to the conductor, and that the same was refused by him, and that she thereupon paid a second fare.

The proof shows that the transfer was good on Canal street cars going in an easterly direction from Broadway. In Gaspar v. N. Y. City Ry. Co., 99 N. Y. Supp. 904 , 51 Misc. Rep. 43 , this court held that, inasmuch as the action was to recover a penalty based upon a refusal to obey the mandate of a statute, the recovery should be sustained only upon strict proof of the violation thereof, and that, as the passenger had only asked for a transfer to Amsterdam avenue, without specifying the direction required, and received one which was good on a car going north, she did not establish a refusal, although she desired to make the trip in a southerly direction, and the transfer was not accepted on a car going south. The facts in the present case were similar, and the doctrine laid down in the case cited controls.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.