
    Melvin H. Taylor, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    
      Railroad — a delayed passenger cannot insist upon taking another car — 7w"s- remedy.
    
    
      Semble,, that a passenger upon a. car upon an electric railroad, which is unreasonably delayed, has no right to- insist upon riding, without, the payment of another fare, upon another car of the same road in order to sooner reach his destination; if the railroad company refuses to make .the desired transfer, he must find Ms redress in damages for the breach of its contract with him.
    Appeal .by the plaintiff, Mel-vi-n H. Taylor, from a judgment of ' the Supreme Court in favor of tiie defendant, entered in the office of the clerk of the county of Kings.on the 23d day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial,, at the Kings County Trial Term.
    
      
      D. W. Perkins, for the appellant.
    ' John F. Brennan, for the respondent.
   Woodward, J.:

This is an action for damages alleged to have been sustained by the plaintiff by reason of his ejectment from one of the cars of the defendant, which car he had entered for the purpose of continuing his journey, which had been interrupted by an accident. The undisputed facts are that the plaintiff entered one of the defendant’s cars to be taken to his home near Coney Island. He paid his fare and became entitled to ride from the point of entering the car to his destination. After going a short distance the car became disabled, and was run on to a switch for repairs. While thus standing upon the switch several cars of the defendant passed, but there was no offer on tile part of the defendant to transfer the plaintiff. Subsequently a second car of the defendant was run in on to the switch, and repairs upon the first car were suspended while the, second car received the attention of the workmen. The plaintiff, who alleges in his complaint that he had an important business engagement in New York which he was unable to meet, and by reason of which he suffered loss in the amount of three dollars (which loss is conceded by the defendant), being anxious to reach his destination, stepped from the car in which he had paid his fare to the second car of the defendant, and in the presence of the superintendent of the defendant, and its conductor, took a seat upon the same. He was told to keep his place in the delayed car; that if he rode in the second car he would be obliged to pay another fare. He refused to return to the car on which he had paid his fare,- or to pay a second fare, and because of such refusal he was ejected from the car in which he had taken his seat. He was subsequently taken upon one of the cars of the defendant to his destination without further cost.

At the close of the plaintiff’s evidence a motion was made by the defendant to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action. This motion was granted, and from the judgment entered the plaintiff appeals to this court.

It is unnecessary to determine at this time whether the plaintiff was entitled to go to the jury upon the main question. The motion of the defendant was to.dismiss the complaint upon the ground that the plaintiff had established no cause of action, when, in fact, the defendant had conceded that the plaintiff had sustained damages to the amount of three dollars by reason of the failure of the defendant company to carry him to his destination in time. to permit him to meet his engagement in New York and one dollar for loss of time caused by the delay. Clearly, the plaintiff had established a cause of action, in so far as the conceded damages are concerned, and it was reversible error for the trial court to dismiss the complaint.

In view of the facts in this case, and the contention of the plaintiff as to the principal cause of action, it may be proper to say that we aré unable to find any authorities in this State' which would justify submitting the evidence to the jury. The plaintiff entered into a contract with the defendant to carry him between two points upon the, line of railroad operated by the defendant, with reasonable speed' and in safety. The fact that one of the cars operated by the company met with an accident did! not give the plaintiff any new rights. The defendant had a right to transfer .him to another car if it thought proper to do so; but because of the fact that the defendant did not elect to do this; the'plaintiff gained no right to transfer himself. The defendant, by refusing to make -the transfer, took upon itself the responsibility for its breach of contract with the plaintiff, but it gave the plaintiff no right to transfer himself. As was said in the- case of Townsend v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 301): “ But when the conductor in charge of the train explicitly tells him • that he cannot retain, his seat upon that ticket ” (a ticket which had' been wrongfully taken up by the conductor of another train), “ that he must pay fare or leave the car, does it not amount to the same thing? He then knows that he cannot proceed upon the ticket taken, but must resort to his remedy the same as though. he had been ejected. If, after this notice, he waits for the application of force to remove him, he does so in his own wrong; he invites the use of the force- necessary to remove him, and if no more is applied than is necessary to effect the object, he can neither recover against the conductor or company therefor. This is the rule deducible from -the analogies of the law. No one has a right to resort to force to compel the performance of a contract made with him by another. lie must avail himself of the remedies the law provides in suck case. This rule will prevent breaches of the peace instead of producing them; it will leave the company responsible for the wrong done by its servant without aggravating it by a liability to pay thousands of dollars for injuries received by an assault and battery, caused by the faithful efforts of its servants to enforce its laioful regulations? This, it seems to us, disposes of the question involved in the appeal of the plaintiff. He had notice that he could not retain his seat in the second car of the defendant upon the original payment of his fare; and the company, by neglecting or refusing to carry him within a reasonable time, simply became answerable for the damages which he sustained by reason of the failure of the defendant to carry out its contract. This much of liability the defendant admits.

The judgment of the trial court should be reversed.

All concurred, except Hatch, J,, absent.

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