
    Alexander G. Nicholson, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    March 15, 1907.
    Railroad—refusal to accept transfer — measure of damages of passenger ejected.
    A passenger upon a surface railroad was given a transfer so punched that the time limit had already expired. On calling the attention of the conductor to the fact he was assured that the transfer would he honored. The transfer, however, was refused by the conductor on the car to which the passenger transferred and he was ejected.
    In an action for damages,
    Held, that the plaintiff was not entitled to recover damages consequent upon his unlawful ejection as he had boarded the car knowing that the transfer upon its face did not entitle him to ride;
    That the act of the conductor in refusing the transfer and ejecting the plaintiff was not unlawful or wrongful;
    That although the plaintiff might be entitled to recover the statutory penalty and the price paid for his fare, he was not entitled to recover in addition for indignities to which he voluntarily subjected himself.
    Hooker, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the pdaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 190.6, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. 0eland [George D. Yeomans with him on the brief], for the appellant.
    
      Mortimer M. Menken, for the respondent.
   Miller, J.:

The plaintiff has a judgment entered on the-verdict of a jury for damages consequent upon an alleged unlawful ejection from one-of the defendant’s cars; The defendant claims that the complaint should have been dismissed. The jury were at liberty to find from the plaintiff’s evidence that he entered a car on one of the detendrán t’s cross-town lines, paid his fare and demanded a transfer, which he noticed, upon receiving it, was so punched that the time limit indicated had already expired; that, upon calling this fact to the attention of the conductor and demanding another transfer, lie was assured, that it was all right; that at the intersection with the line which he desired to take he alighted, boarded the proper car and tendered the conductor the transfer; that the conductor refused to take it, demanded his fare, and, upon his refusal to pay the fare, ejected him from the car.

Practically the only disputed question submitted to the jury was whether the conductor issuing the transfer assured the plaintiff that it was. all right, and apparently this question of fact was deemed the pivotal .question in the case. The' defendant’s right to make all reasonable rules to which the passenger’s contract of carriage is subject is not disputed and need not be discussed, nor is it disputed that the defendant was bound to give the plaintiff a transfer entitling him to a continuous trip for a single .fare, and that for its refusal to do this the plaintiff could have recovered the penalty of fifty dollars provided by statute. He could also recover any excess fare exacted of him, hut it does not follow that he could knowingly board a car with a ticket, which upon its face did not entitle him to a ride, and recover.for being ejected by a conductor who acted strictly within his duties. • The. act of the conductor in ejecting him was not wrongful or imla-wful. Passengers must know that conductors cannot dispense the rules of the company, and if they do not the law charges them with such knowledge. The plaintiff knew that the time indicated by the ticket within which he could tie carried on the line to which he intended to transfer had expired and he had no business to act upon the assurance of the conductor or to expect that the conductor on. the line to which he transferred could take his word in direct contradiction of the ticket. The plaintiff’s ejection from the car was not consequent upon the wrongful act of the conductor who issued the transfer but rather upon his own disregard of the defendant’s rules to which he as well as the conductors was subject. As well might the plaintiff recover if the conductor had refused to issue any transfer at all. The actual damage resulting from such refusal as a rule would be measured by the value of the transfer, i. e., five cents. In order to compel obedience to the law requiring street surface railroads to give a passenger a continuous trip over connecting lines for a single fare the Legislature has provided a penalty, but the law does not contemplate that in addition to that the passenger may recover for indignities to which he voluntarily subjects himself. Whatever doubt there may have been on this question was settled by the Court of Appeals in Monnier v. N. Y. C. & H. R. R. R. Co. (175 N. Y. 281). It is impossible to distinguish that case from the case at bar, because as we have seen the plaintiff could not rely upon an assurance which he was bound to know was false. Our attention is called to Jenkins v. Brooklyn Heights R. R. Co. (29 App. Div. 8); Eddy v. Syracuse Rapid Transit R. Co. (50 id. 109); Jacobs v. Third Ave. R. R. Co. (71 id. 199), but those cases are all distinguishable from the case at bar and it is unnecessary now to determine whether or to what extent they have been overruled by the Monnier case. In the Jenkins case the plaintiff boarded the first car in which he was able to obtain a seat and the transfer ticket was properly punched. In the other two cases relied on the plaintiff boarded the car not knowing that his transfer had been improperly punched. Whether within the doctrine of the Monnier case that makes any difference we do not need now to determine. Said cases relied upon by the respondent are cited in Gillespie v. Brooklyn Heights R. R. Co. (178 N. Y. 347), but in that part of the opinion in which the learned judge who wrote discussed the rule of damage.

The judgment and order should be reversed.

Jenks, Gaynor and Rich, JJ., concurred ; Hooker, J., dissented.

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