
    (88 Hun, 181.)
    MILLER v. KING et al.
    (Supreme Court, General Term, Second Department.
    June 14, 1895.)
    Reargument—Changing Theory oe Case.
    Where a judgment is affirmed on a theory different from that on which it was recovered at the trial, a reargument will be granted.
    Motion for reargument.
    Granted.
    For decision on appeal, see 32 N. Y. Supp. 332.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    W. A. Parshall (Lewis E. Carr, of counsel), for appellants.
    John W. Lyon, for respondent
   BROWN, P. J.

The motion for a reargument in this case must be granted. The case was tried at the circuit solely upon the theory of a breach of contract. The court ruled that the ejectment of the plaintiff from the train was not unlawful. On appeal this court apparently overlooked that ruling, and sustained' the judgment on the ground that “the conductor had no right to eject the plaintiff, and that his act was unlawful.” The plaintiff should not be permitted to sustain his judgment on a different theory than that upon which it was recovered at the trial. Treating the action as one for breach of contract, the damages were excessive. No special damages were alleged or proven. The plaintiff was entitled to actual damages only, and that limited his right to recover to the reasonable expense of procuring a conveyance from the place where he was ejected to his destination. Hobbs v. Railway Co., L. R. 10 Q. B. 111; Francis v. Transfer Co., 5 Mo. App. 7; Railway Co. v. Birney, 71 Ill. 391; Fink v. Railroad Co., 4 Lans. 147-158. As the plaintiff was only a short distance from his destination when ejected from the train, and chose to walk there instead of hiring a conveyance, and suffered no injury or loss from so doing, it is very doubtful whether he is entitled to more than nominal damages.

The motion must be granted, with costs to abide the event. All concur.  