Rubinger v. New York Railways Co.

Appellate Terms of the Supreme Court of New York

Rubinger v. New York Railways Co.

83 Misc. 37, 144 N.Y.S. 765

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1913

StatusPublished

This text of 83 Misc. 37 (Rubinger v. New York Railways Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rubinger v. New York Railways Co., 83 Misc. 37, 144 N.Y.S. 765 (N.Y. Ct. App. 1913).

Pincite

Opinion

Page, J.

The action is to recover for breach of contract for transportation, the plaintiff having been forcibly ejected from one of defendant’s cars. The plaintiff boarded a south-bound Fourth avenue car at Astor place, paid his fare and received a transfer. He left the car at Chamber and Center streets. He first testified that he went to the court house and obtained a certified copy of an order and then went to the corner of Chamber street and Broadway. After a motion to dismiss the complaint, upon the ground, among others, that the plaintiff had proved that he did not make a continuous trip, in that he had stopped in the court house and transacted business, he testified in rebuttal that he was mistaken in his former statement that he had stopped in the court house.

As the trial judge gave judgment for. the plaintiff he must have accepted the plaintiff’s later testimony. He further testified that on arriving at the corner of Chamber street and Broadway (which is conceded to be the transfer point) he walked up Broadway to Reade street, boarded a car and handed his transfer to the conductor. The conductor accepted it but almost immediately returned and informed the plaintiff that he would have to pay his fare, as the transfer was not good at the point he boarded the ear. Plaintiff refused to pay the additional fare and at Murray street he was again requested by the conductor and an inspector to pay his fare and, upon refusal, was ejected from the car by the inspector.

The rule requiring* passengers having transfer tickets to board the cars at certain specified points is a reasonable regulation of their traffic, which passengers accepting transfers must observe. Conductors have no power to waive these regulations and, upon plaintiff’s refusing to pay his fare, the employees of the road were justified in ejecting him from the car. Han[39]*39ley v. Brooklyn Heights R. R. Co., 110 App. Div. 429; Elder v. International R. Co., 68 Misc. Rep. 22; Weber v. Rochester, Syr. & Eastern R. R. Co., 145 App. Div. 84.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Page, J.

The action is to recover for breach of contract for transportation, the plaintiff having been forcibly ejected from one of defendant’s cars. The plaintiff boarded a south-bound Fourth avenue car at Astor place, paid his fare and received a transfer. He left the car at Chamber and Center streets. He first testified that he went to the court house and obtained a certified copy of an order and then went to the corner of Chamber street and Broadway. After a motion to dismiss the complaint, upon the ground, among others, that the plaintiff had proved that he did not make a continuous trip, in that he had stopped in the court house and transacted business, he testified in rebuttal that he was mistaken in his former statement that he had stopped in the court house.

As the trial judge gave judgment for. the plaintiff he must have accepted the plaintiff’s later testimony. He further testified that on arriving at the corner of Chamber street and Broadway (which is conceded to be the transfer point) he walked up Broadway to Reade street, boarded a car and handed his transfer to the conductor. The conductor accepted it but almost immediately returned and informed the plaintiff that he would have to pay his fare, as the transfer was not good at the point he boarded the ear. Plaintiff refused to pay the additional fare and at Murray street he was again requested by the conductor and an inspector to pay his fare and, upon refusal, was ejected from the car by the inspector.

The rule requiring* passengers having transfer tickets to board the cars at certain specified points is a reasonable regulation of their traffic, which passengers accepting transfers must observe. Conductors have no power to waive these regulations and, upon plaintiff’s refusing to pay his fare, the employees of the road were justified in ejecting him from the car. Han[39]*39ley v. Brooklyn Heights R. R. Co., 110 App. Div. 429; Elder v. International R. Co., 68 Misc. Rep. 22; Weber v. Rochester, Syr. & Eastern R. R. Co., 145 App. Div. 84.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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83 Misc. 37, 144 N.Y.S. 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubinger-v-new-york-railways-co-nyappterm-1913.

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