
    George F. Thompson, Respondent, v. New York Central Railroad Company, Appellant.
    County Court, Niagara County,
    July, 1922.
    Carriers — railroads — redemption of unused ticket — failure to sign receipt or statement — evidence — Penal Law, § 1562.
    Plaintiff on the same day that he purchased of defendant a ticket for a journey on its railroad, but before the train by which he expected to travel left the station, called at the ticket office, presented his ticket and asked to have it redeemed. Held, that in an action to recover the amount paid for the ticket the fact that plaintiff signed no receipt or statement of facts concerning the ticket and its purchase was no defense unless he was requested so to do, and where there is a conflict in the testimony upon that point a judgment in favor of plaintiff will be affirmed.
    Section 1562 of the Penal Law containing no provision requiring as a condition of redemption that the purchaser of an unused railroad ticket sign a receipt or statement of facts concerning the ticket, his refusal so to do did not justify defendant’s refusal to redeem the ticket.
    Appeal from a judgment of a Justice’s Court.
    
      'Locke, Babcock, Spratt <fe Hollister, for appellant.
    
      George F. Thompson, respondent in person.
   Hickey, J.

This is an appeal by defendant from a judgment of five dollars and thirteen cents in favor of plaintiff rendered in a Justice’s Court of the town of Royalton, Niagara county.

It appears that on the 13th day of March, 1922, plaintiff purchased a ticket of defendant at the Grand Central Terminal, New York city, for Albany, and paid the sum of five dollars and thirteen cents therefor. On the same day, and before the train on which he expected to travel left the station, he called at the ticket office, presented his ticket and asked to have it redeemed. There is a conflict in the evidence as to what took place between the plaintiff and the ticket agent when plaintiff presented his ticket for redemption. Defendant’s witnesses testified that plaintiff was presented with a form of receipt and a statement of facts concerning the ticket and its purchase, and told to sign it if he wanted his money back. It appears that plaintiff did not sign a receipt or statement and his testimony is that no receipt or other paper was presented to him to sign, nor was he requested to sign any receipt or statement of facts; that he was told by the ticket agent to go to Lexington avenue; that he refused and told the agent he would sue the company if his money was not paid back, and that the agent refused to give him back his money. There was thus presented a question of fact for the justice to pass upon. It was for the justice to say who was telling the truth, plaintiff, or defendant’s witnesses. That plaintiff signed no receipt or statement is no defense unless he was requested so to do. The justice seems to have accepted plaintiff’s version that no such request was made. Such finding was not against the overwhelming weight of evidence and cannot, therefore, be disturbed. The record appears to present no other question for review.

It may not be out of place, however, to call attention to section 1562 of the Penal Law. This section provides for the redemption of unused railroad tickets and imposes a penalty on any railroad company refusing to redeem. The section contains no provision requiring, as a condition of the redemption, that the purchaser sign a receipt or statement of facts concerning the ticket purchased. Nor does it confer any authority on railroad companies to prescribe the conditions of redemption. Hence, even if plaintiff was requested to sign the receipt and statement of facts claimed by defendant’s witnesses to have been presented to him, and refused so to do, it is by no means clear that such refusal justified the defendant in refusing to redeem the unused ticket in question.

Defendant has called my attention to the case of Salomon v. New York Central & H. R. R. R. Co., 165 App. Div. 35. This authority is in no sense in point. In that case the claimant was the transferee of a ticket which embodied a contract signed by the purchaser to the effect that it was not transferable. No such state of facts is presented by the record in this case, and no claim to that effect is made.

It follows that the judgment below must be affirmed, with costs. So ordered.

Judgment affirmed.  