
    Isaac Zuckerman, Appellant, v. New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Appeal — in action for damages for being ejected from street car—• evidence as to receipt and tender of valid transfer — when judgment dismissing complaint reversed.
    Where in an action for damages for being ejected from a street railway car there is ample evidence that plaintiff had received and tendered a valid transfer, and, even assuming that such transfer was invalid, his own testimony showed that he had not been afforded a reasonable opportunity to pay his fare, a judgment dismissing the complaint at the close of plaintiff’s case will be reversed, and a new trial ordered, with costs to appellant to abide the event.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the close of his case upon a trial by a court without a jury.
    Charles Liebling, for appellant.
    James L. Quackenbush (Henry J. Smith, of counsel), for respondent.
   Bijur, J.

Plaintiff testified that on June 12, 1912, he boarded a Spring street car, asked the conductor how he could get to a certain .address on. the East side ; was informed that he. should continue on Spring street to Broadway, take the Broadway car north and then transfer to an Eighth street car east bound, and that he (the conductor) would give him a transfer.' He paid his fare, received the transfer, rode up Broadway, the Broadway conductor repeated the same information, returned to him the final stub of the transfer; he boarded an Eighth street car east bound and surrendered this stub to the conductor. A few moments later the conductor came to him showing him a transfer stub telling him “ The transfer isn’t good.” Plaintiff testified: “ I said, I didn’t give you that transfer.” At Eighth street and Avenue A an inspector boarded the car. He said, ‘ Pay your fare.’ I wanted to explain but the conductor didn’t let me explain. He gave me one yank and they chucked me off.” He was then thrown off and sues for his damages.

The motion to dismiss was based on two grounds.

The second, i. e., that no more force was used in ejecting the plaintiff than was necessary, need not be discussed, inasmuch as it is perfectly evident that there was ample evidence in that regard to carry the case to the jury.

The present appeal raises only a question of law as to the first ground, which was, “ That there is no proof that the transfer offered was a valid transfer.” This ground, in my opinion, is not well founded.

Although no objection was taken on the score that there was not in operation at the time an appropriate system of transfers between these various lines of cars, plaintiff actually introduced evidence to that effect.

Under such circumstances, the plaintiff having demanded a transfer for the route which he subsequently took was entitled to assume that he received what he asked and paid for. Muckle v. Rochester Co., 79 Hun, 32; Eddie v. Syracuse Co., 50 App. Div. 109. There was, therefore, as I understand the case, ample evidence that plaintiff had received and tendered a valid transfer.

Moreover, in any event, assuming the transfer to have been invalid, plaintiff was not afforded, according to his testimony, a reasonable opportunity to pay his fare, on which ground alone he would be entitled to recover. See Hayes v. N. Y. C. & H. R. R. R. Co., 34 Hun, 627, opinion reported in 30 Alb. L. J. 469; Huba v. Schenectady R. Co., 85 App. Div. 199; also 6 Cyc. 552.

Seabury and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  