
    George Reidman, by his Guardian ad Litem, Charles H. Belknap, Appellant, v. The Brooklyn, Queens County and Suburban Railroad Company, Respondent.
    
      Evidence—proof that a street railway, corporation operated cars upon a certain-route at the time of am. accident.
    
    In an action brought to recover damages for an assault committed upon the plaintiff by the conductor of a horse car, in which an issue, was presented as to ' whether the conductor was in the service of the defendant, the plaintiff offered in evidences lease, dated prior to the assault, by which the defendant leased, for the term- of 999 years, the railroad route on which the assault took place, and the defendant admitted that it owned and operated a railroad upon that street, although it denied that it operated any cars on the route in question at the time of the assault.
    
      Held, that such admission, considered in connection with the lease, would have justified the jury in finding that, after the making of the lease and prior to the alleged assault, the defendant had entered into the possession of and operated the route in question, and that, in the absence of proof in support of the defendant’s denial that, it operated any cars'there at the time the assault was committed, such possession and operation might be presumed to have continued, and that the trial court erred in dismissing the complaint.
    Appeal by the plaintiff, George Reidman, by his guardian ad, litem, Charles H. Belknap, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of July, 1897, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of' the court after a trial at the Kings County Trial Term.
    
      Bernard H. Lord, for the appellant.
    
      Charles A. Collin, for the respondent.
   Willard Bartlett, J.:

This action was brought to recover damages for an assault upon the plaintiff, alleged to have been committed by an employee of the defendant while acting as a conductor of one of its horse cars, on North Second street, in the city of Brooklyn, on the 15th day of January, 1895. Upon the trial proof was introduced which would have authorized the jury to find that the plaintiff was assaulted sometime in the month of January, 1895, by the conductor of a horse' car on the street mentioned, but when the plaintiff rested the defendant moved to dismiss the complaint on the ground that the evidence did not show' that the car belonged to the defendant’s line or was operated by the defendant, or that the conductor was in the employment of the defendant at the time the assault was committed. Thereupon the plaintiff was allowed to reopen his.case, and called, the president of the defendant corporation to strengthen his evidence on the point raised by the motion. After this witness had testified, the motion to dismiss was renewed and was granted. The main question winch arises upon the present appeal is whether the proof and admissions in the case would have justified the jury in finding that the conductor who attacked the plaintiff was in the service of the defendant.

Only two facts were proved bearing upon this .branch of the case. One was that in January, 1894, the Broadway Ferry and Metropolitan Avenue Railroad Company had leased to the defendant corporation, for a term of 999. years from that date, a certain railroad and railroad routes then owned, constructed or operated by the lessor in the city of Brooklyn, county of Kings, and in the town of Newtown in the county of Queens, among which routes was one passing through North Second street at the point where the assault is said to. have, occurred. The other fact was that the word's on the car from which the conductor expelled the plaintiff were North Second’ Street and Middle Village ” This designation, •. of itself, threw no light on the question of the ownership or control of the oars. ', ■

In addition to these facts, however, there appears in the record a very important admission which was made in the course of the trial, in a colloquy between Mr. William G. Brown, one of the counsel for the plaintiff, and Mr. Thomas L. Hughes, one of the .defendant’s counsel. I quote: “ Mr. Brown: I would like to make a, request of the attorneys for the defendant. They at one time promised to admit that if was the cars of this defendant company that, were passing, over and through that street at the time in question. Mr. Hughes : I decline to admit that, if vour honor please. I will admit that we owned and operated d railroad upon that street. I do not admit that we operated any cars at that time. In fact, I deny that we did. The Court: You deny that the defendant operated any cars at that time on that street l Mr. Hughes: Yes, sir.” * ' . '

It seems to me that the statement of Mr. Hughes when considered in connection with the lease, which was put in evidence, might fairly be treated by the jury as an admission that the defend- • antj after the making of the lease apd prior to the alleged assault,, had entered into the possession of the leased routes and operated the railroad' line in North Second street, which was one of the lines mentioned in that instrument. In the absence of proof in support oí his denial that the defendant ran any ears there at the particular time when, the assault was alleged to have' been committed, there. was enough in the case to warrant the presumption that the car from which the plaintiff' was thrown was under the defendant’s control and management through the agency of the conductor who assailed the lad. The lease showed that the legal right to the possession and operation of the line was in the defendant. So far as appeared, this right was exclusive. The admission showed that the defendant had actually assumed the possession and undertaken the operation of the railroad in North Second street, as it was authorized to do under' the lease. This state of things having been established, it was presumed to continue, especially as the lease contemplated its continuance for a period of 999 years. (Wilkins v. Earle, 44 N. Y. 172,192.) The plaintiff was entitled to the benefit of this presumption with the jury unless it was overthrown, as it readily might be if the facts were as alleged in behalf of the defendant, by proof that the defendant ran no car over the North Second street line during the period in which the jury should find that the assault, if any, was committed.

I have not discussed the testimony of Mr. Clinton L. Rossiter, the president of the defendant corporation, whom the plaintiff called as a witness, after being allowed to reopen the case, because that testimony, so far as it bore upon the question under consideration, was purely hearsay and, therefore, did not affect the plaintiff’s position one way or the other.

The evidence in behalf of the plaintiff as to the date of the alleged assault, the direction in which the car was going at the time, and various other circumstances, was confused and contradictory ; and we are asked to sustain the dismissal of the complaint on this ground as well as by reason of the ..absence of any connecting link in the proof between the conductor and the defendant company. I think it quite clear, however, that the case was óne for the jury from either point of view.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Cullen, J., absent.

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