
    Michael B. Clark, Respondent, v. The New York, New Haven and Hartford Railroad Co., Appellant.
    Appeal from a judgment of the Municipal Court of the city of _ Rew York, seventh district, borough of Manhattan, which said judgment was entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict of the jury and for a new trial.
    Henry W. Taft and William Greenough, for appellant.
    Palmer & Somerville, for respondent.
   Truax, J.

It is alleged in the complaint, among other things, that on the 16th day of September, 1901, the plaintiff had engaged passage on the steamer Massachusetts, which said steamer was operated and controlled by the defendant; that plaintiff rented and hired from the defendant for the sum of three dollars, then paid by the plaintiff to the defendant, a stateroom on said steamer for the use and occupancy of the plaintiff from the city of New York to the city of Providence, and was furnished by the defendant with a ticket or voucher therefor; that on the said 16th day of September, 1901, the plaintiff duly demanded from the agent of the defendant, then in charge of the staterooms, the key of the said stateroom and demanded possession thereof; that such possession was refused by the defendant and the plaintiff was not allowed to use said stateroom, and the defendant and the agent and employees of said defendant refused to give plaintiff such accommodation as he became entitled to by the purchase of said ticket; that by reason of the failure of the defendant to furnish plaintiff the said stateroom as aforesaid plaintiff suffered great mental pain and was otherwise damaged.

It was shown on the trial that the ticket or voucher above mentioned had printed on its back the following words: “ The right is reserved to resell rooms not called for thirty minutes after departure ;” that it was purchased by plaintiff on the boat; that he did not notice the above-mentioned words on the back of the ticket; that after he had purchased the ticket he went out on the deck, where he remained for some length of time; that the plaintiff did not call for the stateroom for more than thirty minutes after the departure of the steamer; that when he did call for said stateroom his attention was called to the words on the back of the ticket, and he was told that the stateroom had been resold; that he asked the purser of the boat either to give him another room or refund the money, which the purser refused to do, and that plaintiff was compelled to sit up all night.

On the trial the court charged in effect that although the plaintiff had shown no physical injury caused by the defendant the jury was entitled to give the plaintiff damages on account of the injuries to his feelings and the indignity put upon him “ as a measure in the nature of punishment as smart money,” and to this charge the defendant excepted. The jury found a verdict for the'plaintiff for $125.

I am of the opinion that this charge was erroneous. Plaintiff was in effect simply a tenant of the stateroom that he had hired from the defendant for a night. He was kept out of what might be called the premises that had been demised to him by the defendant and was entitled to recover no more than what he had paid for the use of the room or the value of the room for the term that he had hired it. The action was one simply for a breach of the contract of hiring. It was said in Jacobs v. Sire, 4 Misc. Rep. 398, that in actions for breach of contract, with a single exception, the amount recovered is limited to the actual damage caused by the breach, and that the measure of damage is the same whether the defendant fails to comply with his contract through inability or willfully disregards it. The amount of the verdict shows that the defendant was injured by the above-mentioned charge of the court. The cases referred to by the counsel for the respondent, like Day v. Wordworth, 13 How. (U. S.) 363, and Voltz v. Blackmar, 64 N. Y. 440, are actions in tort in which class of actions it is well settled that under certain circumstances the jury may give punitive damages.

I do not consider it necessary to pass upon the point raised by the defendant that the reservation printed upon the back of the ticket given by the defendant to the plaintiff was a reasonable regulation because I am of the opinion that the plaintiff was entitled to have the use of the room or to have the money that he had paid for the use of the room refunded to him.

Judgment is reversed with costs to the appellant and a new trial ordered, unless plaintiff stipulates to reduce the judgment to three dollars and costs, in which event the judgment so modified is affirmed without costs to either party in this court.

Pbeedman, P. J., and Gildeesleeve, J., concur.

Judgment reversed, with costs to appellant, and new trial ordered, unless plaintiff stipulates to reduce judgment to. three dollars and costs, in which event judgment so modified is affirmed, without costs.  