
    James J. Duffy, Appellant, v. The Long Island Railroad Company, Respondent.
    First Department,
    May 7, 1915.
    Assault — forcible removal of purchaser of ticket from in front of ticket seller’s window — question for jury.
    Where, in an action by a purchaser of a railroad ticket for an alleged assault, it appeared that the plaintiff, upon receiving a “ plugged” coin from the ticket seller as change for a bill which he had given in payment of his fare, insisted on receiving a good coin, and was forcibly removed from in front of the ticket seller’s window by an employee of the defendant, a caséis established requiring a submission to the jury.
    Appeal by the plaintiff, James J. Duffy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of December, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
    
      Edgar J. Treacy, for the appellant.
    
      Edward Kelly, for the respondent.
   Scott, J.:

The case made by the plaintiff’s evidence which, for the purpose of this appeal, must be accepted as true, is that plaintiff went to defendant’s station in the city of New York with a view to becoming a passenger on defendant’s railroad. He went to the ticket office in the station and purchased a ticket, receiving from the ticket seller change for the bill which he gave in payment of his fare. Including in the change was a plugged ” or uncurrent coin. Plaintiff insisted on receiving a good coin in its place, but the ticket seller refused to give him such a one, apparently without any good reason. After a short dispute on this point the ticket seller called a person in uniform in defendant’s employ who forcibly removed plaintiff from his place in front of the ticket seller’s window. It is perfectly clear that this presented a case for submission to the jury. (Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347; Palmeri v. Manhattan Railway Co., 133 id. 261; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 id. 117.) It may be that plaintiff was unreasonable in his insistence upon receiving a good coin, or that his damages from the assault were inconsiderable, but those were matters for the jury to consider.

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

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

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