Gallagher v. Christopher & Tenth Street Railroad

New York Court of Common Pleas

Gallagher v. Christopher & Tenth Street Railroad

14 Daly 366, 13 N.Y. St. Rep. 80

CourtNew York Court of Common Pleas

DecidedJanuary 3, 1888

StatusPublished

Cited by2 cases

This text of 14 Daly 366 (Gallagher v. Christopher & Tenth Street Railroad) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallagher v. Christopher & Tenth Street Railroad, 14 Daly 366, 13 N.Y. St. Rep. 80 (N.Y. Super. Ct. 1888).

Pincite

Opinion

Per Curiam. — [Present, Van Hoesen and Bookstaver, JJ.]

—This action was brought to recover wages as a driver or conductor on defendant’s road, from July 31st to August 6th, 1887, amounting to S9.38. The defense was a special agreement with plaintiff, and a breach thereof by [367]*367him, whereby the sum of $15 became due from him to defendant. &

The material portions of the contract are as follows:

“Rule 8. Conductors . . . must register every person getting-upon the car.”

“ Rule 10. No conductor will be permitted to receive a fare from a passenger, directly or indirectly.”

And for a violation of either of these rules, it provides that “the sum of $15 shall be deducted from the wages then or thereafter due to him; and it is mutually understood and agreed that the amount so deducted shall belong to the company, as liquidated damages, and not as a fine or penalty or otherwise.” And it further provides that a report of detectives of the violation of the foregoing rules shall be conclusive evidence of such violation, and shall bar the conductor of all right to recover the money retained from the wages.

On the trial, it was proved by two detectives that it was a fact, that on the 7th day of July, plaintiff had violated both of the foregoing rules, and they had so reported. By the terms of the agreement, this report was made conclusive on the plaintiff. His denial of the fact, therefore, cannot avail him.

The validity of such a contract has been passed upon by this court, in Birdsall v. Twenty-Third St. R. Co. (8 Daly 419). And the same case holds that the omission of the company to discharge the conductor immediately upon the discovery of the violation of the rule, was not a waiver of the agreement.

We think that this.case falls within the rule thus laid down, and that the judgment should be reversed and a new trial ordered, with costs of this appeal to the appellant.

Judgment reversed and new trial ordered, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam. — [Present, Van Hoesen and Bookstaver, JJ.]

—This action was brought to recover wages as a driver or conductor on defendant’s road, from July 31st to August 6th, 1887, amounting to S9.38. The defense was a special agreement with plaintiff, and a breach thereof by [367]*367him, whereby the sum of $15 became due from him to defendant. &

The material portions of the contract are as follows:

“Rule 8. Conductors . . . must register every person getting-upon the car.”

“ Rule 10. No conductor will be permitted to receive a fare from a passenger, directly or indirectly.”

And for a violation of either of these rules, it provides that “the sum of $15 shall be deducted from the wages then or thereafter due to him; and it is mutually understood and agreed that the amount so deducted shall belong to the company, as liquidated damages, and not as a fine or penalty or otherwise.” And it further provides that a report of detectives of the violation of the foregoing rules shall be conclusive evidence of such violation, and shall bar the conductor of all right to recover the money retained from the wages.

On the trial, it was proved by two detectives that it was a fact, that on the 7th day of July, plaintiff had violated both of the foregoing rules, and they had so reported. By the terms of the agreement, this report was made conclusive on the plaintiff. His denial of the fact, therefore, cannot avail him.

The validity of such a contract has been passed upon by this court, in Birdsall v. Twenty-Third St. R. Co. (8 Daly 419). And the same case holds that the omission of the company to discharge the conductor immediately upon the discovery of the violation of the rule, was not a waiver of the agreement.

We think that this.case falls within the rule thus laid down, and that the judgment should be reversed and a new trial ordered, with costs of this appeal to the appellant.

Judgment reversed and new trial ordered, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

14 Daly 366, 13 N.Y. St. Rep. 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-christopher-tenth-street-railroad-nyctcompl-1888.

Opinion

Related

Cite This Page — Counsel Stack