
    Jerome Buck, Resp’t, v. W. Seward Webb, President of the Wagner Palace Car Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    1. Railroads—Drawing room car—Expulsion op passenger who has LOST HIS TICKET.
    Plaintiff purchased a ticket entitling him to a seat in a drawing-room car of defendant, which was good for that day and train only, but lost the same. The agent who sold it gave him a personal card of explanation, but the conductor required him to pay again, and on his refusing, requested him to leave the car, which he did, and traveled in a common coach. Ho other person claimed the seat. Ileld, that the conductor exceeded his authority, and that defendant was liable for his act.
    3. Same—Damages.
    In such a case, where no personal injury was done to plaintiff and no physical force used, a verdict of $1,000 is excessive.
    8. Hew trial—Condition on granting.
    On setting aside a verdict as not supported by the evidence and granting a new trial, it is error to impose as a condition the payment of all costs of the action. The costs to be imposed are only those of opposing the motion and of the trial, including witness fees and disbursements.
    (Van Brunt, P. J., dissents.)
    Appeal from judgment on the verdict of a jury, and. an order setting the verdict aside, unless the plaintiff stipulated to reduce it to the sum of $300, on payment by the defendant of the costs of the action. *
    
    Saunders, Webb & Worcester, for app’lt; G. W. Gotierill, for resp’t
   Daniels, J.

The verdict was for the sum of $1,000, for the damages which the jury concluded the plaintiff had sustained by his exclusion from seat 23 in the drawing room car ¡Nbkomis, for which he had paid one dollar and fifty cents for his passage from Saratoga Springs to the city of ¡New York. The ticket had been obtained by him from an agent representing the company in the village of Saratoga Springs. And it in form entitled him to that seat, but only on this train and for the day on which it was issued. His evidence, which the jury must have credited to render the verdict they did in his favor, was that after the purchase the ticket had been lost. And he then repaired to the office of the agent for another, but as the diagram of the car showing the seats for which tickets had been issued had in the meantime passed out of his possession, the agent declined, as he vetv well might, to issue another. He did, however, supply the plaintiff with his personal card, with the statement added that, “ this gentleman holds seat in ¡Nbkomis, thisp. m., mislaid, E. 0. Benedict,” and with that and his passage ticket he took the seat.

After the train had started the conductor of the car called upon the plaintiff for his drawing room car ticket, and the explanation of these facts was made to him, with the production of the card of the agent containing the endorsement which has been mentioned. But the conductor of the car declined to accept this card with the explanation, for the occupancy of the seat, although it had been marked on the diagram as having been sold, and no other person had appeared to claim it by virtue of the lost ticket. The plaintiff was informed that he must then pay for the seat or leave the car. He declined to pay, and complying with the order of the conductor of the car, he passed into a common car, which he testified was to some extent uncleanly, and continued there until the arrival of the car at the city of Hew York in the evening. It further appeared that the money paid by the plaintiff to the agent for the ticket was returned to and, it is to be presumed from the evidence, retained afterwards by the company which in this manner had the advantage of the price of the seat without rendering the service. If the conductor had permitted the plaintiff to occupy the seat it would have been his duty to issue a check for it, which the porter would have taken up and delivered to an officer of the company, when it would have been charged to the conductor. And it was the apprehension of the loss of the fare in this manner which seems to have induced him to withhold his consent to the occupancy of the seat by the plaintiff. But it is by no means sure that this loss would have been made to fall upon him if he had allowed the plaintiff the seat. The officers to be dealt with are usually reasonable, practical and fair men, and by the presentation of the agent’s card and information of the fact that this seat appeared on the diagram to have been sold and remained unclaimed by any other passenger they would, without doubt, have ratified the act of the conductor, if he had allowed the plaintiff his seat. But if they would not, that fact would not displace the plaintiff’s right to it and the loss if it had occurred must have been an incident of the conductor’s employment.

By the facts that the seat appeared in the diagram to have been sold, and it was claimed by no other person, and the conductor was made aware of the fact by the presentation of the agent’s card that the plaintiff was the purchaser, he had perfectly satisfactory evidence before him that the latter was entitled to this seat. It could not have been more so if the ticket itself which the agent sold had been produced. If another person had appeared with it, and claimed the seat, or if it could have been used on any other train, or car, or on this car at any other time, the case would have been different, and sustained the act of the conductor. But as no other person did claim the seat, and this particular ticket could be used at no other time, on this or any other car, the conductor should have acted on the report of the agent, and given this seat to the plaintiff. What the law exacts from carriers of passengers is reasonable conduct on the facts brought to their knowledge, or that of their agents and employes. And it was not reasonable to deny his seat to the plaintiff when his title to it was supported by all these facts.

A large array of authorities have been brought to the attention of the court by the defendant’s counsel, as cases tending to shield the defendant from liability. But neither arose upon any state of facts bearing any substantial analogy to those now presented. They were either passenger or fare tickets, not restricted to any car or train, or detached in such a manner as to deprive the passenger of his right to the passage, or the time to which their use had been limited had previously expired ; neither of these facts, existed here, for the ticket had been sold for this seat, on this trip by this car, and the conductor was assured of that fact by the report of the agent, and that the plaintiff was the purchaser. It was an improper Use of his authority after that to send him into another car.

Certain rules of the company were introduced to sustain the action of the conductor. But they did not do that, for neither expressly nor by implication did they include it. Whatever wrong was suffered by the plaintiff was done by the employee of this company. There was no default whatever on the part of the company moving the train and carrying the plaintiff. But it was wholly confined to the defendant, which should be held liable to make adequate indemnity to him for the failure to perform its obligation with him. He was not bound to pay the price of the seat again, for he had already acquired the right to it, and was entitled to stand as he did on that right.

But while he was subjected to an indignity which could not fail to be attended with a disturbance of sensibility as well as mortification, he was not personally injured, nor were his rights further invaded than by his exclusion from this seat and the moral compulsion to which he then submitted of passing to and making his passage in another car. The company was liable to compensate him by way of damages for this injury. The case clearly is one for indemnity only, and not for punishment. In that respect the jury misjudged its duty by rendering their verdict for ¡§1,000. It exceeded all legal bounds of the injury, and that was considered to be the case by the justice presiding; at the trial. But he was in error in directing the payment of all the costs of the action as one of the conditions on which a new trial was ordered. For the rule established by the authorities is, that the party entitled to reEef against a verdict not supported by the evidence shall pay the costs of opposing the motion, and the costs of the trial, including witnesses fees and disbursements.

Cases do arise where the court itself can with reasonable fairness and intelligence,'by its own action, determine the amount which should not be exceeded by the verdict. But this is not one of them. It is peculiarly adapted to the jury, whose discretion however should be restrained and guarded against unwarranted extravagance. That was not done, and the order made should be so far modified as to direct a new trial on payment of the costs and disbursements, including the fees of witnesses, to be ascertained by adjustment, after notice, before the clerk, and ten dollars costs of opposing the motion, and the defendant in that event should be allowed ten dollars costs and its disbursements on this appeal. If the defendant fails to pay such costs within the time designated by the general rule of practice, then the order should' be affirmed with the costs and disbursements already mentioned to the plaintiff on this appeal But if the costs shall be paid, including the fee for opposing the motion, then the judgment should also be vacated with the verdict.

Brady, J., concurs.

Van Brunt, P. J.—I dissent from the result arrived at because I do not think that any cause of action was made out.  