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Kappes v. New York City Railway Co.

99 N.Y.S. 322 Court N.Y. App. Term Decision date 1906-06-01 English

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p. 322
KAPPES v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
June 1, 1906.)

Headnote

Evidence—Testimony of Party—Sufficiency—Dismissal.
The dismissal of the complaint cannot he sustained; no good reason for rejecting plaintiff’s testimony appearing in the record, his testimony, if- true, entitling him to judgment, it being uncontradicted, he being unimpeached, and his story being not improbable.
[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2438.J
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Charles W. Kappes against the New York City Railway Company.' "From a judgment dismissing the complaint, plaintiff appeals.
Reversed, .and new trial granted.
p. 323
Argued- before GILDERSLEEVE, DAVIS, and CLINCH, JJ.
L. J. Boudy, for appellant.
William E. Weaver, for respondent.

Plaintiff sued to recover a penalty of $50 under section 104 of the railroad law (Laws 1890, p. 1114, c. 565, ás amended by Laws 1892, p. 1406, c. 676), for refusal to give a transfer. Except for certain admissions made by the defendant, the plaintiff’s case rested upon his own testimony. The defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish a cause of action. This motion was granted, and judgment for $10 costs was rendered against the plaintiff and in favor of the defendant.

We must conclude from this record that the learned trial justice refused to believe the plaintiff and on that ground dismissed the complaint. We can find no good reason in the record for thus rejecting plaintiff’s testimony. His character was not impeached, and he was uncontradicted, although he gave the number of the car and of the conductor who refused to give the transfer. ITis story was not improbable. Plaintiff’s statement, if true, entitled him to judgment. Under the circumstances we think it was error to dismiss the complaint.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. Hull v. Littauer, 162 N. Y. 569 , 572, 57 N. E. 102 ; Littlefield v. Lawrence, 83 App. Div. 327 , 329, 82 N. Y. Supp. 25 .

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