
    Kunzmann v. New York & Rockaway Beach Railroad Co.
    (City Court of Brooklyn—General Term,
    January, 1894.)
    .A recovery against a railroad company for negligent injuries received while alighting from a train cannot he sustained where all the allegations of the complaint as to ownership or possession as lessee hy defendant of the train and tracks, or employment hy it of those in charge thereof, is denied in the answer, and there is no evidence as to those facts, and it is uncontroverted that the train, at the time of the accident, was on the tracks of another company which ran trains between the same points as the defendant.
    Appeal from judgment in favor of plaintiff entered upon the verdict of a jury for $1,500, and from order denying motion for a new trial on the minutes.
    Action to recover for injuries received by the plaintiff while alighting from a train, caused by the sudden starting of the train without warning, whereby she was thrown headlong to the platform.
    
      Hurd & Grim, for plaintiff (respondent).
    
      Wm. C. Beecher, for defendant (appellant).
   Van Wyck, J.

In the complaint it is alleged that defendant is a corporation and a common carrier of passengers between Flatbush avenue, Brooklyn, and Rockaway Beach, Queens ■county, and was or is the owner or lessee in possession of the engines, cars, tracks and switches operated and used by it between said termini, and the employer of the conductors, engineers and brakemen employed in and about said engines and .cars, and that plaintiff was injured, while alighting at Franklin : avenue station, Brooklyn, from one of said cars, through the .negligence of those in charge thereof. The answer denies every .allegation except that defendant is a corporation. From the judgment in favor of plaintiff this ajjpeal is taken. A careful perusal of the testimony discloses no satisfactory evidence that defendant was the owner or lessee in possession of the train or the tracks, or the employer of those in charge of the train. There is no proof of what, if any, roadbeds or tracks the defendant owns, or where the same begins or ends, and it is uncontroverted that this train, at the time of the accident, was on Atlantic avenue, Brooklyn, at Franklin avenue station, on the tracks of the Long Island Railroad Company. There is evidence that the latter company runs trains over the track from Rockaway Beach to this station. Whether or not the train in question was in charge of the defendant ought to be capable of easy proof. '

Judgment and order must be reversed, and new trial granted, with costs to appellant to abide the event.

Clement, Ch. J., concurs.

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