Hyperlawhypertext legal database Gasper v. New York City Railway Co. 99 N.Y.S. 904

← Cases

Gasper v. New York City Railway Co.

99 N.Y.S. 904 Court N.Y. App. Term Decision date 1906-06-28 English

Contents

Majority

p. 904
GASPER v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
June 28, 1906.)

Headnote

Carriers—Regulation—Street Railroads—Refusal of Transfer—Penal-TT.
A street railway company is not liable for refusal of a transfer where a passenger, though desiring to go south on Avenue A, merely asks for an Avenue A transfer, and is given one good only on a north-bound car.
Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
Action by Evelyn Gasper against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued before GIEDERSEEEVE, LEVENTRITT, and Mc-CAEE, JJ.
Frank D. Wynn, for appellant.
N. E. Reach, for respondent.

There is a difference in the record before us in this case, which in our judgment makes a distinction from that of the case of Erma Gasper v. New York City Railway Co. (decided by us at this term) 99 N. Y. Supp. 902 , and calls for the reversal of this judgment. In the Emma Gasper Case the request of the passenger was clearly made for a transfer "south” along Amsterdam avenue, and we have decided that this was refused. In the case under consideration the proof is that the plaintiff asked for a transfer to Amsterdam avenue, and she received same. As this action is for the recovery of a penalty based upon the refusal to obey the mandate of a statute, we feel, that judgment should be sustained only upon strict proof of the violation thereof, and upon this record we do not believe the necessary refusal has been established.

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