
    Albert P. Miller, Resp’t, v. The New Jersey Steamboat Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Carriers—Not required to exchange cabin berths for stateroom— Civil rights.
    Plaintiff, a colored minister, took passage on one of defendant’s boats, and engaged berths in the cabin for himself and family, but finding the accommodations too limited, requested the purser to exchange them for staterooms. The pu'ser consulted the captain, and then declined to make the exchange, and thereup-n plaintiff demanded and received his money back, and with his family left the b at. Held, that these facts did not make out a cause of action, and the court erred in charging that one had been made out; that whatever may have been the duty of defendant towards plaintifE, it was not bound after he had bought and paid for these berths to exchange them for a stateroom.
    Appeal from judgment entered on the verdict of a jury and from order denying motion for new trial
    
      W. P. Prentice, for app’lt; II. L. Brant, for resp’t
   Van Brunt, P. J.

This action was brought to recover damages for the refusal by the defendant, a common carrier, to furnish the plaintiff accommodations on its steamboat.

The facts sworn to by the plaintiff are briefly these: The plaintiff, a colored minister, on the afternoon of August 10,1887, applied to the defendant for passage for himself and family, consisting of his wife, two children and mother-in-law, from New York to Albany on defendant’s boat, the “ Drew.” And having ascertained at the purser’s office what the tickets would cost, and desiring to save expenses, at the same time being as comfortable as possible, he concluded to take berths, the wife, children and mother-in-law going to berths in the ladies* compartments and the plaintiff having a berth elsewhere. The plaintiff found that these berths would cost $2.00 apiece, passage and everything, and accordingly paid for the berths and was immediately directed to the ladies’ saloon, where he and his family were met by the stewardess, who conducted them to the ladies’ cabin to some berths in the rear, where berths were assigned to his wife, mother-in-law and two children. They sat down their little bundles and were told by the stewardess they could not keep them there because there were others who were to come there and there was no room.

The plaintiff further testified that there was only a small passageway, and that they turned around, and said: “ These berths are very small; we do not see how we can get along with two women and two children; ” whereupon his wife said: “ Suppose you go to the purser and get a stateroom; they only cost fifty cents more; get two staterooms.” He then returned to the purser, and said: “Well, Mr. Purser, I would like to. exchange these berths; we find them too small for comfort, inadequate for proper accommodation, and no place to put little bundles, or anything of the kind.” The purser said : “ I cannot make the change without the consent of the captain.” The plaintiff then sought out the captain, and had some conversation with him, and the captain saw the purser, and had some conversation with him, whereupon the plaintiff asked the purser: “ What is the pleasure of the captain, sir?” His reply was: “No other arrangement will be made.” After waiting a little while, the plaintiff sought out the purser again, and said: “ If you cannot do better than this, and you have not had us to understand that you had no stateroom accommodations, we will have to leave the boat, and you will please give me my money. We would rather leave the boat than go in this shape.”

The witness further testified that at the time he came back he saw the purser give staterooms to other parties. The purser replied : “ I cannot do that without the consent of the captain.” The plaintiff went after the captain again, who returned with him to the purser’s office, and after a while his money was refunded to him. The plaintiff then said: “ I cannot help the color of my skin any more than you can' the color of your eyes. It seems too mean that an American citizen shall be treated in this manner right in the city of Mew York." He had-some further conversation in regard - to the offices of the company, and then left the boat. The plaintiff further testified that he had never been told by any of the officials that there were no staterooms.

Upon the trial the learned court charged the jury: “ I am inclined to think that the plaintiff has made out &J cause of action of about this width and extent; ” to which the counsel for the defendant duly excepted; and requested the court to charge that if "the plaintiff voluntarily left the boat there was no cause of action, which was refused.

We think that the learned court below.fell into an error in supposing that the evidence showed that there was any demand for a stateroom except in exchange for the berths which the plaintiff had already secured.

We have searched the case in vain to find any proof of this description. The demand upon the part of the plaintiff was to exchange the berths which had been assigned to him, and for which he had paid, for a stateroom, which seemed to him after examination to be preferable and better suited to his wants. The evidence shows that when the money paid for these berths was returned he left the boat, and made no demand after that time for a stateroom. /

We think under these circumstances no cause of action was made out. Whatever may have been the duty of the defendants toward the plaintiff, they were not bound after he had bought and paid for these berths to exchange them for a stateroom. They were under no such legal obligation, although they may have been under a legal obligation to- furnish the plaintiff with a stateroom the'same as other travellers upon a demand made by him for the same and an offer to pay. But there is no offer to pay for a stateroom, except by the return of tickets which he had reserved for the berths, and possibly offering to pay the difference in price between the berths and the • stateroom. The plaintiff had bought the berths and the defendants were willing to comply with tho contract which the payment of the plaintiff called upon them to fulfil. But the plaintiff was not satisfied with those accommodations and desired others. He demanded an exchange, and nothing else but an exchange. After having sold these berths to the plaintiff, and he having secured them, the defendants were not bound to rescind" this contract and buy back the berths and run the risk of selling them over again. If for his convenience the plaintiff desired more ample accommodations it was necessary that he should pay for them, and this he did not offer to do except upon the condition that the defendants would rescind the contract which they had already entered into with him by the sale of the tickets for the berths.

We think for this reason that there was a failure to make out a cause of action and the learned justice erred in charging to the jury that a cause of action had been made out in favor of the plaintiff.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Beady, J., concurs.

Daniels, J.

I concur, as the plaintiff failed to make out his right to maintain the action with that degree of clearness as to justify the court in holding that he was entitled to recover. It was for the jury to decide whether the refusal to exchange the berths for staterooms was made on account of the plaintiff and his family being colored persons and for that reason refusing them the privileges extended to the white passengers. The evidence was sufficient to submit that question to them, but not to sustain the court in ruling that a cause of action, as matter of law, had been proved.  