
    Philip Milchman, Appellant, v. New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Carriers — of passengers — when passenger entitled to use force to resist ejectment — action for breach of contract to carry — assault of passenger by conductor — street railways.
    If a railway passenger has paid his fare the conductor has no right to eject him, and if he attempts so to do the passenger is entitled to use such force as is necessary to resist his ejection.
    Plaintiff insisted that he had paid his fare and defendant’s conductor that he had not. In the conductor’s attempt to eject plaintiff by force from the ear plaintiff claimed that he was assaulted. In an action for breach of the contract to carry, a charge to the jury that in case of dispute if the conductor insists upon the payment of fare it is the duty of the passenger" to pay his fare even though he had paid it before is erroneous and the error is not cured by the further instruction that plaintiff was entitled, if he was a passenger and paid his fare, to a reasonably safe and comfortable ride which if he did not get and was assaulted there was a breach of the contract to carry.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered on a verdict for defendant.
    Abraham M. Fisch, for appellant.
    James L. Quackenbush (W. J. Sheils, of counsel), for respondent.
   Pendleton, J.

The action is for breach of a contract of carriage; plaintiff insisting he had paid his fare and defendant’s conductor that he had not. The conductor attempted to eject plaintiff by force from defendant’s car, and in such attempt plaintiff claimed assaulted him. The court charged the jury as-follows:

“ Now, what was the duty of the defendant, and what was the duty of the passenger? They have mutual obligations. The proper thing to do would be this: according to law, the conductor should go to a passenger, or one who is in the car and ask him for his fare. If the passenger says that he paid his fare, and the conductor says he did not, if the conductor insists upon payment of a fare it is then the duty of the passenger to pay his fare, even though he paid it before. If he does not want to pay it twice, it is the duty of the passenger, when the conductor directs him, to get off the car. The passenger should take the next car. I say this, even though the passenger is in the right, even though the passenger has paid his fare, if the conductor say, You did not pay your fare ’, and the conductor directs him to get off, the passenger must go off the car.
“You may ask why this is. I will tell you. The law is very jealous of maintaining the peace of the community. Nobody has any right, neither a passenger nor a conductor, to do anything which has a tendency to a breach of the peace. Now, if a passenger has paid his fare, and the conductor demands another fare, and as I have just told you it is his duty to get off the car, we say in law and all lawyers know the very comprehensive principle that where there is a wrong, there is a remedy; now, there is a remedy in the law for that. If a passenger is compelled to pay two fares, he can sue the railroad company to recover the sum of fifty dollars as a penalty. That is what the passenger should do. The passenger has no right to remain upon the car and insist upon staying there, and refuse to get off, if the' conductor directs him to get off. The company has a right to use reasonable force to get him off the car; it is the duty of the conductor to do that, and if he cannot do it himself, he may call a policeman and have that done.” To this plaintiff’s counsel excepted.

The charge was error. If a man pays his fare the conductor has no right to eject him, or attempt so to do, and the passenger is entitled to use such force as is necessary to resist ejection, and for any damages suffered the company is liable. Raynor v. New York & L. I. Traction Co., 86 Misc. Rep. 201; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; English v. Delaware & Hudson Canal Co., 66 id. 454; Monnier v. New York C. & H. R. R. Co., 175 id. 281. The error in the charge was not cured by the subsequent statements by the court, “ that the plaintiff was entitled, if he was a passenger and paid his fare, to a reasonably safe and comfortable ride. If he did not get that, and the things happened which were alleged during the trial, then the railroad company is guilty of a breach of contract.”

It cannot be said that the jury understood that this was a withdrawal of the erroneous charge and intended to change the rule of law previously expressed. The charge being erroneous and prejudicial, judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Guy and Bijur, JJ., concur.

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