
    WEINSTEIN v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    February 23, 1904.)
    1. Caeeiees—Railboad Law—Tbansfebs—Action fob Penalty—Evidence.
    Where, in an action to recover the penalty prescribed by Railroad Law, § 105 (Laws 1890, p. 1114, c. 565), for a refusal to give a transfer, it appeared that a transfer was given plaintiff, but not honored by the conductor of the car he subsequently took) and there was no evidence that he took the proper car, or that, if he had taken it, the transfer would have been refused, he was not entitled to recover.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by Hyman Weinstein against the Interurban Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
    Argued before FREEDMAN, P. J., and GIEGERICH and McCAEE, JJ.
    Henry W. Goddard and William E. Weaver, for appellant.
    J. Gordon, for respondent.
   PER CURIAM.

This action was brought to recover the penalty prescribed by section 105 of the railroad law (Laws 1890, p. 1114, c. 565) for a refusal to give a transfer. The complaint herein is not sustained by the proof. The undisputed facts show, not that the plain- . tiff was refused transfers for himself and wife, but that transfers were given him. These transfers were not honored by the conductor of the car which was subsequently taken by plaintiff and his wife, but there is no evidence showing that he had taken the proper car, which it was shown he might have taken to enable him to reach his destination ; nor was it shown that, if he had taken such car, the transfer held by him would have been refused.

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