
    BLOCK v. NASSAU ELECTRIC R. CO.
    (Supreme Court, Appellate Term.
    June 24, 1910.)
    Action (§ 27)—Contract or Tort—Assault by Conductor—Instructions— Trespassers.
    In a suit against a street railway for assault by its conductor, it was error to instruct that plaintiff could recover, even if he refused to pay fare, if the conductor used unreasonable force in ejecting him, since, unless he paid fare he was a trespasser, and his action was not for breach of contract, but for assault, of jurisdiction of which the Municipal Court is deprived by Blunicipal Court Act (Laws 1902, c. 580), § 1, subd. 14.
    [Ed. Note.—Eor other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Samuel Block against the Nassau Electric Railroad Com-" pany. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before SEABURY, GUY, and BIJUR, JJ.
    George D. Yeomans (Mr. Carpenter, of counsel), for appellant.
    Mortimer Solomon, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes
    
   BIJUR, J.

The complaint is drawn for damages for breach of contract of carriage, arising out of an assault by defendant’s conductor while plaintiff was a passenger. Aside from disputed questions of fact as to provocation and self-defense, and the payment of fare, the judge charged that plaintiff could recover, even if he had not paid his fare, but refused to pay it, if the conductor exercised unreasonable force in his attempt to eject the passenger. To this the defendant duly excepted, and requested the judge to charge that, in ord'er to warrant a recovery upon contract, the jury must find that the plaintiff paid his fare, which the judge refused to do. The exception was well taken. Rothstein v. B. H. R. R. Co., 129 App. Div. 527, 114 N. Y. Supp. 344. Unless plaintiff paid his fare, he was a trespasser; for there could be no contract of carriage upon the refusal of plaintiff to pay any fare. In such case the action would be for assault, over which the Municipal Court has no jurisdiction. Municipal Court Act (Laws 1902, c. 580) § 1, subd. 14.

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