
    Isaac Jacobs, Appellant, v. The Third Avenue Railroad Company, Respondent, Impleaded with The Dry Dock, East Broadway and Battery Railroad Company.
    
      Negligence—transfer tickets on street surface railroads — mistake of the conductor issuing the transfer in punching the time thereon — he acts as the agent of the second company— liability of the latter where the passenger is ejected from its car — not affected by any rule of the company — measure of damage.
    
    Where two street railroad companies, for a valuable consideration, agree to accept transfer tickets issued by each other, the conductor of one of the companies, in issuing a transfer ticket entitling the holder to ride upon the cars of the other company, acts as the agent of the latter company.
    Under such circumstances the status of a person riding upon a transfer ticket is the same as if he had paid a cash fare; and where, owing to a mistake of the conductor who issued the transfer ticket, in punching thereon the time it was issued (which mistake the passenger was unable to discover owing to his ignorance of the meaning of the numbers upon the transfer ticket), a conductor, employed by the second company, refuses to accept the ticket, ejects the holder from the car and causes his arrest and imprisonment, the latter company is liable in damages, notwithstanding that the conductor acted in good faith, without malice and with a desire to protect the property of the company. The company cannot shield itself from liability to the passenger under a rule adopted by it respecting the recognition of transfer tickets.
    In such a case the passenger is only entitled to recover .compensatory damages, which embrace loss of time, the amount which he' was compelled to "pay for passage upon another car, and the injury done to his feelings by reason of the'indignities to which he was subjected.
    Appeal by the plaintiff, Isaac Jacobs, from an order of the¡ Appellate Term of the Supreme Court in favor of the defendant, The Third Avenue Railroad Company, entered in the office of the clerk of the county of New York on the 26th day of April, 1901, reversing a judgment of the General Term óf the City Court of the city of New York in favor of the plaintiff, entered on the 23d day of January, 1901, upon an order entered on the 21st day of January, 1901, affirming a judgment of the City. Court of the city of New York in favor of the plaintiff, entered on the 25th day of January, 1900, upon the verdict of a jury for $1,000, and also affirming an order of said City Court entered on the 7th day of February, 1900, denying the motion of the defendant, The Third Avenue Railroad Company, for a new trial made upon the minutes.
    
      S. Livingston Samuels, for the appellant.
    
      Theodore H. Lord, for the respondent.
   Hatch, J.:

The appeal in this case comes into this court by an order of the justices who heard the appeal from the City Court allowing the same. Upon the trial had in the City Court the complaint as to the Dry Dock, East Broadway and Battery Railroad Company was dismissed,, and the action was thereafter continued against the present defendant. It is' not claimed that any error was committed upon, such dismissal, and the liability of the railroad company affected thereby is not before us for consideration. The action is brought to-recover damages for an alleged assault and false imprisonment, and. arises out of the following facts :

It appeared by the complaint, and was admitted by the answer,, that between the' respective railroads there existed a traffic agreement, based upon a valid consideration, whereby each railroad Company agreed with the other to receive and transport passengers from the cars of the respective companies without further compensation. than such as was paid to the company carrying the passenger to the intersection of the said railroads at the Bowery and Grand street in the city of New York ; that the railroad carrying a passenger who desired a transfer should issue to such passenger a transfer ticket which should entitle such passenger to carriage from the point of intersection to his destination upon the line of the railroad.

The evidence disclosed that the plaintiff became a passenger upon a car of the Dry Dock Company at Grand street, paid his fare, and at the same time requested a transfer to the Third Avenue line at the Bowery intersection. The conductor thereupon issued to the plaintiff a transfer ticket, as requested, but punched the same as having been given at fifteen minutes after five in the afternoon, whereas it was then fifteen minutes past six, the conductor having made the mistake of an hour. The plaintiff did not understand the meaning of the numbers on the transfer ticket and was, therefore, unaware that a mistake had been made in the hour punched thereon. When the car arrived at the Bowery plaintiff alighted therefrom and immediately boarded a Third avenue car. The conductor of that car asked for his fare and plaintiff tendered the transfer ticket which he had received as aforesaid. The conductor refused to receive it, and informed the plaintiff that it was not punched right and was, therefore, not good. The plaintiff thereupon informed the conductor of the circumstances under which he had received the ticket from the conductor of the other car. This explanation did not satisfy the conductor and he demanded payment of fare as a condition of plaintiff’s transportation. This the plaintiff refused, and, after some further colloquy, the conductor took hold of the plaintiff’s coat collar and compelled him to alight, using, however, no more force than was necessary for that purpose. Before removing him from the car he had called upon a policeman to arrest the plaintiff. This the policeman refused to do until he was ejected from the car. When that happened he was arrested, and the conductor accompanied the policeman and plaintiff to the station house, where he made complaint against him and appeared before the magistrate the next day. After the complaint was made the plaintiff was locked up, kept in custody for several hours, and finally procured bail. On examination before the, magistrate the next day he was discharged.

There can be no question but that under the traffic agreement between these two railroads each conductor acts as- the agent of the respective railroads in issuing transfer tickets for carriage thereon. (Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. 363; Talcott v. Wabash R. R. Co., 89 Hun, 492.) Each agrees to recognize transfer tickets issued by the other, and such agreement is admitted to be founded upon a valuable consideration. It is, therefore, clear that plaintiff, when' he received' his ticket entitling him to ride upon the road of the defendant, entered into a contract of carriage with the Third Avenue Railroad Company, and thereby became entitled to ride thereon to his point of destinatiom The mistake in punching the ticket was not the plaintiff’s mistake. In law it was the mistake of the Third Avenue Railroad Company, as it was committed by its agent. The plaintiff could not be charged with contributory negligence in receiving the same, as he was in ignorance concerning whether it was punched right or wrong, and, in the absence of explanation, was unable to discover that a mistake had- been made. Consequently, he was without means of determining it or ability to correct it. Under such circumstances, the Third Avenue Railroad Company was not justified in refusing to honor the ticket. (Eddy v. Syracuse Rapid Transit R. Co., 50 App. Div. 109.) When, therefore, the conductor of the Third avenue car refused to accept the ticket for transportation of the plaintiff, ejected him from the car and caused his arrest and imprisonment, the railroad company was guilty of a wrongful act, and became liable in damages for such injury as the plaintiff sustained. The refusal to receive the ticket, the ejection from the car and the arrest and imprisonment, áre to be treated in law, as they were in fact, as continuous acts for which the defendant, the Third Avenue Railroad Company, is responsible. (Dupre v. Childs, 52 App. Div. 306; affd. on opinion below, 169 N. Y. 585.)

Under the circumstances of this case, the plaintiff is only entitled to recover compensatory damages. These embrace loss of time, the amount which plaintiff was obliged to pay for passage upon another car, and injury done to his feelings by- reason. of the indignities under which he wrongfully suffered. (Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25 ; Ray v. Cortland & Homer Traction Co., 19 App. Div. 530.) No point, however, seems to be raised as to the amount of the damages awarded, and they seem to have been authorized under the testimony.

The learned Appellate Term reversed the judgment upon the ground that the business transacted by the respective railroads was wholly independent, the one of the other, and that nothing was shown to establish a common interest in the fares received, which was essential to the imposition of the liability sought to be established in this action. This view entirely ignored the provisions of the traffic agreement, wherein each railroad, for a valuable consideration, agreed to transport the passengers of the other. Under such circumstances, the obligation imposed upon each was to transport passengers delivered by the other, holding transfer tickets, in the same manner and subject to the same liability as though the passenger paid a. cash fare therefor to the railroad guilty of the breach of contract of carriage. While the rule was recognized by the learned Appellate Term that the authorities support a cause of action in tort where a mistake is made by a servant of the company guilty of an invasion of an innocent passenger’s rights, yet it was held that such rule did not apply to the circumstances of this case for the reason that the one committing the mistake was not the agent or servant of the company, and that such company was justified in making and enforcing reasonable rules and regulations respecting the recognition of transfer tickets. The first position necessarily falls under the observations already made, and cannot be supported. There can be no such thing as a reasonable rule and regulation which protects the company against the mistakes of its own agents which result in the invasion of a passenger’s rights; otherwise, all that it would be necessary for a railroad corporation to do would be to regulate a given subject, and then shield itself behind such regulation when called to account for an infringement of the legal rights of its passengers.

It is contended, however, by the respondent that the conductor in what he did acted in good faith, was guilty of no malice, and sought to protect the property of the company, which by reasonable regulation he was called upon to do in the performance of his duty. The good faith of the conductor is of no consequence. It could not authorize or protect against unlawful acts. (Yates v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 100; Jenkins v. Brooklyn Heights R. R. Co., 29 App. Div. 8.) Further reliance is placed by counsel upon the case of Townsend v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 296). This case .must be limited to its facts and is. not authoritative beyond it. There the passenger was possessed of no ticket, and sought to ride upon his statement that he had paid Ms fare and that his ticket had been taken up before he changed ears, and he was held negligent in not procuring the delivery of his ticket by the other conductor. This case has been several times distinguished (English v. Del. & H. C. Co., 66 N. Y. 454), and does not seem even to have been followed upon the subsequent trial of that action. (4 Hun, 217; 6 T. & C. 495 ; Ray v. Cortland & Homer Traction Co., 19 App. Div, 530.) The present case is distinguishable, for here there was no negligence of the passenger; he presented a ticket for which he had paid and which entitled him to passage under his contract of carriage.

There are no further’questions in this case that require discussion. We have examined them all and find no error therein.

It follows that the determination of' the Appellate Term should be reversed,. with costs in this court and in the Appellate- Term, and the judgment of the General Term of the City Court should be affirmed. ' • ■

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, J.J., concurred. •

Determination of Appellate Term reversed, with costs. in this court and in the Appellate Term, and judgment of the General-Term of the City Court affirmed.  