
    Louis Goodman, Appellant, v. New York Railways Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Street railways — right to transfer — Railroad Law, § ioi — when stipulation given on previous trial not binding on second trial — action against defendant for breach of contract of carriage.
    Plaintiff, at Thirty-fourth street and Fourth avenue, boarded a south-bound Fourth avenue ear intending to go to some point on Delancey street (about one mile south of Eighth street). He asked for and received a transfer. He did not notice any destination sign on the ear, and the conductor told him nothing in regard thereto. It was, in point of fact, an Astor place car. When it reached Eighth street and Fourth avenue and started to turn toward Broadway, plaintiff alighted and took the next ■ through car of the Fourth avenue line. The conductor of that car, however, told him that the transfer was not good thereon, and as he refused to pay another fare he was ejected on the theory that he had no right to continue his journey thereon under any circumstances. Held, on reversing a judgment in favor of' defendant entered on a verdict of a jury and ordering a new trial, that plaintiff was entitled to be carried to his destination by the most direct route operated by defendant.
    That under section 101 of the Railroad Law plaintiff had the right to a transfer at Eighth street and Fourth avenue from the short service ear to a through ear on the same line, and that he had a cause of action against defendant for breach of contract of carriage.
    A stipulation given on the previous trial that if judgment were rendered in favor of plaintiff the award of damages might be a certain sum, which shows plainly that it was limited to the trial at which it was given, was not binding on the second trial, but if this were not so the trial court on the second trial properly relieved defendant therefrom.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon the verdict of a jury.
    Arthur Hutter, for appellant.
    James L. Quackenbush (W. J. Shells, of counsel), for respondent.
   Butte, J.

A previous judgment, in favor of defendant, has been set aside by this court in 86 Mise. Rep. 43.

Plaintiff, at Thirty-fourth street and Fourth avenue, boarded a south-bound Fourth avenue car intending to go to some point on Delancey street (about one mile south of Eighth street). He asked for and received a transfer. He did not notice any destination sign on the car, and the conductor told him nothing in regard thereto. It was, in point of fact, an Astor place car. When it reached Eighth street and Fourth avenue and started to turn toward ■ Broadway, plaintiff alighted and took the next through car of the Fourth avenue line. The conductor of that car, however, told him that the transfer was not good thereon, and, as he refused to pay another fare, he was ejected.

As pointed out in our previous opinion, plaintiff was entitled to be carried to his destination by the most direct route operated by the defendant. Charbonneau v. Nassau Elec. R. Co., 123 App. Div. 531. If, therefore, he had the right to further transportation southward, he was justified in his insistence on being carried by a Fourth avenue car. Respondent, ón the other hand, urges that it has a right to require passengers who board an Astor place car to transfer to and go farther south on Broadway (an avenue west of and parallel with the Fourth avenue line) even though that be a more circuitous route to their ultimate destination. It is, I think, conceivable that such a course might be excused by a due presentation of impelling circumstances and cogent reasons. Some evidence was offered by respondent, and it is not clear whether this was intended to explain the transfer to Broadway instead of to the Fourth avenue through car, or to justify an absolute refusal to transfer from a ‘ ‘ short service ’ ’ to a Fourth avenue through car. But in any event, the testimony of a foreman (over due objection) as to an alleged rule of the company was incompetent; and the cryptic reason given by him, i. e., “ To avoid congestion, for the convenience of passengers,” was valueless.

The question, therefore, arises whether plaintiff had, under section 101 of the Railroad Law, the right to a transfer at Eighth street and Fourth avenue from this ‘ ‘ short service ’ ’ car to a through car on the same line. Although the case of Baron v. New York City Rys. Co., 120 App. Div. 134, did not turn ultimately or precisely on this point, four of the members of the court state clearly their respective opinions thereon to an extent which seems to me must determine our decision in the case at bar. Of the five learned justices, Scott, J., with whom Clark, J., concurred, says that a passenger is entitled to a transfer from a “ short service ” car to a through car on the same line: Laughlin, J., with whom Lambert, J., agreed, was of opinion that a passenger was entitled to such transfer, unless he should have received actual notice of the intermediate destination of the car before his fare was accepted and have been given an opportunity to alight. In the case at bar, it is not even claimed that the destination of the car was actually made known to the passenger.

The authority of the Baron case confirms my own view that under the circumstances of the case under review plaintiff was entitled to a transfer farther south on the Fourth avenue through car. I am inclined to believe that Roach v. Brooklyn Heights R. R. Co., 119 App. Div. 520, is a holding to the contrary, but, even if it be, it cannot affect our conclusions.

There is an intimation in Braffett v. Brooklyn, etc., R. R. Co., 204 N. Y. 440, 443, that a passenger in a position similar to that of the plaintiff is entitled to a transfer, but neither the Braffett case nor the cases which it cites, namely, Bull v. New York City R. Co., 192 N. Y. 361; O’Connor v. Brooklyn Heights R. Co., 123 App. Div. 784, make express reference to a “ short service ” car.

Respondent urges also that, as the transfer given to the plaintiff by the first conductor was, on its face, not good for a ride farther south on the Fourth avenue line, he was, in any event, not entitled to ride on the second car which he boarded, and that his recovery for breach of contract of carriage is thereby barred, whatever other remedy he may have.

We need not decide whether the form of the transfer-slip given to plaintiff sufficiently disclosed its alleged infirmity. See Charbonneau case, supra, distinguishing Nicholson v. Brooklyn Heights R. Co., 118 App. Div. 13; and Weber v. Rochester, etc., Co., 145 id. 84. Transportation was not refused to the plaintiff merely because he failed to obey a reasonable regulation of the company, as in the Monnier case, infra, and in Mullin v. Long Island R. Co., 136 App. Div. 733. Plaintiff was ejected from the second car on the theory — which is now urged on this appeal — that he had no right to continue his journey thereon, under any circumstances. But, as he did have such right, it follows that he has a cause of action against the defendant for breach of contract of carriage. Monnier v. N. Y. C. & H. R. R. Co., 175 N. Y. 281, particularly at 288, 290. It should be noted here again that there was no competent proof in the case at bar of any regulation of the company, and, of course, none as to the reasonableness of such regulation.

Incidentally, respondent urges that this was not a “ short service ” car for the reason that Astor place is a separate terminal. I doubt whether, under the circumstances of this case, respondent’s position would be bettered even if that were so. But I do not think that the respondent can successfully maintain that the end of this short spur, some three hundred feet long, is a separate terminal. Moreover, the very inscription on the car involved in this case “Astor Place Only ” indicates the respondent’s own view of Astor place not as a terminal, but as a point on the line at which the cars are turned hack; not going all the way along the line, hut to Astor place only.

As the determinative considerations herein above reviewed, and other points to which I have not adverted, were adequately presented at the trial below by due objections to evidence, exceptions to the charge and requests to charge, the judgment must be reversed and a new trial granted with costs to appellant to abide the event.

One other point, urged by the appellant, remains to be considered. Respondent’s counsel, on the previous trial, had conceded, upon certain terms, that if judgment were rendered in favor of plaintiff the award of damages might be $500, and plaintiff-appellant insists that such concession was binding upon the trial now reviewed. I think the stipulation, by its very terms, shows plainly that it was limited to the trial at which it was given, and is, therefore, no longer binding; but, even if that were not so, the court below at the present trial quite properly relieved the respondent from it.

Guy and Page, JJ., concur.

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