
    Miller v. New Jersey Steam-Boat Co.
    
      (Supreme Court, General Term, First Department.
    
    December 29,1890.)
    Carriers—Refusal of Accommodations—Liabilities.
    Plaintiff, having purchased tickets for passage and berths on a steam-boat for himself and his family, persons of color, on finding the berths small, and the accommodations inadequate, requested the officers of the boat to exchange the berths for state-rooms, the accommodations of which were better, but the officers refused to do so. Thereafter plaintiff demanded the return of the money paid, which was refunded, and he, with his family, left the boat. Held, that, on these facts, in the absence of evidence of any demand for a state-room except in exchange for the berths, no cause of action was shown for damages for refusal to furnish plaintiff accommodations.
    Appeal from circuit court, New York county.
    Action by Albert P. Miller against the New Jersey Steam-Boat Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. For former report, see 10 N. Y. Supp. 960.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      W. P. Prentice, for appellant. Henry L. Brant, (Daniel H. Chamberlain, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover damages for the refusal by the defendant, a common carrier, to furnish the plaintiff accommodations on its steam-boat. The facts sworn to by the plaintiff are briefly these: The plaintiff, a colored minister, on the afternoon of August 10,1887, applied to the defendant for passage for himself and family, consisting of his wife, two children, and mother-in-law, from New York to Albany on defendant’s boat, the Drew, and, having ascertained at the purser’s office what the tickets would cost, and desiring to save expenses, at the same time being as comfortable as possible, he concluded to take berths, the wife, children, and mother-in-law going to berths in the ladies’ compartments, and the plaintiff having a berth elsewhere. The plaintiff found that these berths would cost $2 apiece, passage and everything, and accordingly paid for the berths, and was immediately directed to the ladies’ saloon, where he and his family were met by the stewardess, who conducted them to the ladies’ cabin to some berths in the rear, where berths were assigned to his wife, mother-in-law, and twochildren. They set down their little bundles and were told by the stewardess they could not keep them there because there were others who were to come there and there was no room. The plaintiff further testified that there was only a small passageway, and that they turned around and said: “ These berths are very small. We do not see how we can get along with two women and two children.” Whereupon his wife said: “Suppose you go to the purser and get a state-room. They only cost 50 cents more. Get two state-rooms.” He then returned to the purser and said: “ Well, Mr. Purser, I would like to exchange these berths. We find them too small for comfort, inadequate for proper accommodation, and no place to put little bundles, or anything of the kind.” The purser said; “I cannot make the change without the consent of the captain. ” The plaintiff then sought out the captain, and had some conversation with him, and the captain saw the purser and had. some conversation with him, whereupon the plaintiff asked the purser: “What is the pleasure of the captain, sir?” His reply was: “No other arrangement will be made. ” After waiting a little while, the plaintiff sought out the purser again and said: “If you cannot do better than this, and you have not had us to understand that you had no state-room accommodations, we will have to leave the boat, and you will please give me my money. We would rather leave the boat than go in this shape.” The witness further testified that at the time he came back he saw the purser give state-rooms to other parties. The purser replied: “I cannot do that without the consent of the captain.” The plaintiff went after the captain again, who returned with him to the purser’s office, and after a while his money was refunded to him. The plaintiff then said: “I cannot help the color of my skin any more than you can the color of your eyes. It seems too mean that an American citizen shall be treated in this manner right in the city of New York.”. He had some further conversation in regard to the officers of the company and then left the boat. The plaintiff further testified that he had never been told by any of the officials that there were no state-rooms.

Upon the trial the learned court charged the jury: “I am inclined to think that the plaintiff has made out a cause of action of about this width and extent;” to which the counsel for the defendant duly excepted, and requested the court to charge that if the plaintiff voluntarily left the boat there was no cause of action, which was refused. We think that the learned court below fell into an error in supposing that the evidence showed that there was any demand fora state-room except in exchange for the berths which the plaintiff had already secured. We have searched the case in vain to find any proof of this description. The demand upon the part of the plaintiff was to exchange the berths which liad been assigned to him, and for which he had paid, for a state-room, which seemed to him, after examination, to be preferable and better suited to his wants. The evidence shows that when the money paid for these berths was returned, he left the boat, and made no demand after that time for a state-room. We think, under these circumstances, no cause of action was made out. Whatever may have been the duty of the defendant towards the plaintiff it was not bound after he had bought and paid for these berths to exchange them for a state-room. It was under no such legal obligation, although it may have been under a legal obligation to furnish the plaintiff with a state-room the same as other travelers, upon a demand made by him for the same, and an offer to pay. But there is no offer to pay for a state-room except by the return of tickets which he had reserved for the berths, and possibly offering to pay the difference in price between the berths and the state-room. The plaintiff had bought the berths, and the defendant was willing to comply with the contract which the payment of the plaintiff called upon them to fulfill. But the plaintiff was not satisfied with those accommodations and desired others. He demanded an exchange, and nothing else but an exchange. After having sold these berths to the plaintiff, and he having secured them, the defendant was not bound to rescind this contract and buy back the berths and run the risk of selling them over again. If, for his convenience, the plaintiff desired more ample accommodations, it was necessary that he should pay for them, and this he did not offer to do, except upon the condition that the defendant would rescind the contract which it had already entered into with him by the sale of the tickets for the berths. We think, for this reason, that there was a failure to make out a cause of action, and the learned justice erred in charging to the jury that a cause of action had been made out in favor of the plaintiff. The j udgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to ■abide the event.

Brady, J., concurs.

Daniels, J.

I concur, as the plaintiff failed to make out his right to maintain the action with that degree of clearness as to justify the court in holding that he was entitled to recover. It was for the jury to decide whether the refusal to exchange the berths for state-rooms was made on account of the plaintiff and his family being colored persons, and for that reason refusing them the privileges extended to the white passengers. The evidence was sufficient to submit that question to them, but not to sustain the court in ruling that a cause of action, as matter of law, had been proved.  