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Carlin v. New York City Railway Co.

108 N.Y.S. 1020 Court N.Y. App. Term Decision date 1908-03-05 English

Delivered by BISCHOEF, J.

Contents

Majority

p. 1020
CARLIN v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
March 5, 1908.)

Headnote

Carriers—Penalties—Refusal to Give Transfers—Bona Fide Passengers.
Whether one suing a street railway company for the statutory penalty for its refusal to carry him without further payment of a fare was a bona fide passenger is material on his right to recover, and the exclusion of evidence on the issue is reversible error.
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
Action by James Carlin against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
Argued before GIEDERSEEEVE, P. J., and BISCHOEF and MacLEAN, JJ.
James E. Quackenbush (Henry E. Gannon, of counsel), for appellant.
Harcourt Bull, for respondent.

The question whether the plaintiff was a bona fide passenger had a material bearing upon his right to recover the statutory penalty for the defendant’s refusal to carry him without further payment of a fare. Nicholson v. N. Y. City Ry. Co., 118 App. Div. 858 , 103 N. Y. Supp. 695 . While the rulings of the justice, excluding proof upon this issue, were supported by certain decisions announced prior to the time of the trial, the authority cited necessarily requires a reversal of this judgment.

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

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