
    NEIDENBERG v. DRY DOCK, E. B. & B. R. CO.
    (Supreme Court, Appellate Term.
    June 27, 1907.)
    Carriers—Assault on Passenger—Evidence.
    Judgment for defendant, in an action against a street railway company for an assault and battery upon a passenger by a conductor, held against the weight of evidence.
    
      Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Jacob Neidenberg against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.
    Henry Lieb, for appellant.
    William E. Weaver, for respondent.
   PER CURIAM.

The record discloses that the plaintiff boarded one of the cars owned and operated by the defendant at Attorney streets, in this city, and that he tendered a $2 bill to the conductor and asked for a transfer. . Shortly thereafter he received the change, but not the transfer, which he again called for. He continued to ride in the car until it reached Grand street and Broadway, when he again asked the conductor for a transfer. Pie did not receive it. The conductor said to him: “I would not give you a transfer. Get off the car, you damned sheeny!” He then struck plaintiff in the face. There is no proof of any provocation for the assault in the record. The fact that the plaintiff was a passenger on the car, and rode to Grand street and Broadway, and that at that point he was roughly handled, is corroborated by a Miss Levine, a stranger to him, who was a passenger on the car, and who alighted at the east side crossing of Broadway and Grand street. This witness also testified that she continued to watch the car, and observed what happened at the west side of Broadway and Grand street. A doctor testified to having been called by and attending the plaintiff the same day as the accident, and also described'his injuries. While he seems to have made more visits to plaintiff than the'nature of the injuries required, still his testimony corroborates the evidence of the plaintiff as to the existence of the injuries. The plaintiff is a foreigner, and his evidence is somewhat confused, but not so inherently improbable as to call for disbelief. At the close of the plaintiff’s case a motion was made by defendant’s counsel to dismiss the complaint, which the trial justice then denied. The defendant then made proof of no record of the accident, but adduced no other proof. The justice thereafter rendered judgment in favor of the defendant. The judgment is against the weight of evidence, and should be reversed.

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