
    Harriet M. Parish, Respondent, v. The Ulster and Delaware Railroad Company, Appellant.
    
      Mileage look—when made out to “Mr. H. M. Parish," although ordered to le made out to “Mrs. H. M. Parish," the latter cannot insist on its acceptance for her fare —a conductor may properly act upon the face of the mileage look.
    
    Through the error of a railroad company’s agent a mileage book, containing a provision that during certain months of the year it should be available only for the passage of the owner thereof, was made out to “Mr. H. M. Parish ’ instead of to “Mrs. H. M. Parish,” as it should have been made out. During one of the specified months a conductor on one of the railroad company’s trains declined to give credence to the explanation of the said Mrs. H. M. Parish, that the mileage book was intended to be made out to her, and refused to accept the mileage book as good for her fare. The next day she wrote to the railroad company explaining the situation, and received a reply asking her to forward the book for correction. She neglected to do this, but again took a train on the railroad, presented the mileage book to the conductor, who upon her refusal to pay her fare in cash, ejected her from the train.
    
      
      Held, that such eviction did not render the railroad company liable in damages to Mrs. H. M. Parish, for the reason that, as the mileage book was not one which, upon its face, authorized her to be carried upon the train, the conductor was justified in putting her off;
    That if Mrs. Parish had any claim against the railroad company for issuing a book in the wrong name, her remedy was not to insist upon the conductor’s accepting it in payment of her fare.
    Appeal by the defendant, The Ulster and Delaware Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 14th day of March, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 8th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was in the habit of selling, at the office in Kingston only, mileage books for use upon its road. One Leroy E. Parish, the husband of the plaintiff, applied to the local agent at Hobart to send and get him a 500-mile book, and gave him ten dollars with which to pay for it. The book was to be made Out to his wife, and he gave the initials “ H. M.” Parish as her initials. It is provided upon the face of the book that during the months of June, July and August it is good only for the person in whose name it is issued, and shall be taken up and forfeited if presented by any other person. During the other months of the year it is good for use of the family of the person named therein. The agent sent the ten dollars to the office at Kingston, and a book was returned, issued to “ Mr. H. M. Parish.” The agent delivered the book to Leroy E. Parish, and he delivered it to his wife on or about the 20th day of May, 1902.
    As soon as she received it the plaintiff noticed that it was made out to “ Mr. H. M. Parish,” and she explained it to the conductor to whom she first presented it some time in May ; that it.was intended to be issued to her and not to Mr. Parish, and that she had signed her name at the bottom of it, and that conductor permitted her to ride upon it. Several times afterwards, prior to August sixth, she also rode upon the book. On the last-mentioned date, however, she presented the book to the conductor of a train which she boarded at Hobart and sought to ride thereon. The conductor declined to receive the book as fare, saying it was issued to “ Mr.” Parish and his orders were to enforce the rules of the company; that she must pay her fare - or get off of the train. The plaintiff refused to pay and got off.
    The next day she wrote to the company, explaining the situation, and on August eighth or ninth she received a letter in reply from the general superintendent, telling her that she should have “ declined to receive ” the book if it was not properly filled out; that conductors have strict instructions to see that passengers comply with the rules printed on the ticket, and that if she held a ticket issued in the name of Mr. H. M. Parish the conductor had no right to honor it for her passage, and also telling her that in order to avoid further trouble she should send the ticket to his office for correction.
    She never sent the book back for correction nor made any attempt to do so, but on the twenty-third of August she again took a train at Davenport Center, which was run by the same conductor that had previously declined to receive the book. He again declined to receive it, and told her that she must get off or pay her fare. She refused to get off, and the conductor put her' off. It is very clear from the evidence that he used no more force than was necessary to do so. Her own statement shows that. For being put off of the train upon these two occasions the plaintiff has brought an action against the defendant for an assault and battery on the part of its conductor. She recovered a verdict at the Trial Term of $1,000, and from the judgment entered thereon and from an order denying a new trial this appeal is taken.
    
      Amos Van Etten, for the appellant.
    
      W. H. Johnson, for the respondent.
   Parker, P. J.:

The action is for an assault and battery on the part of the conductor for ejecting the plaintiff from the defendant’s train. The trial judge charged the jury that she was unlawfully put off, and that the only question for them was the amount of damages which she suffered. Inasmuch as I have reached the conclusion that such instruction was erroneous, no other question need be examined.

On August 6, 1902, the plaintiff got upon the defendant’s train at Hobart for the purpose of riding to Davenport Center, She refused to pay her fare; that is conceded. Unless, therefore, the book which she then presented to the conductor was one that, upon its face, authorized her to be carried upon such train, the conductor was justified in putting her off. (Monnier v. New York Central & H. R. R. R. Co., 175 N. Y. 281.) It seems too clear for discussion that upon its face the book did not authorize her to ride upon it. In the month of August it was good only to those to whom it was issued, and it was not issued to her. Being addressed to Mr. H. M. Parish, it repels the idea that it was intended for her. And the conductor was not bound to hear her explanation and to determine from it whether her money had paid for the book and, through an error of the defendant’s clerk, it had been made out to the wrong party. In the Monnier case, above cited, it is distinctly held that even though the fare which the conductor demanded was, as between the traveler and the company, an unlawful exaction, yet it was not unlawfully exacted as between the traveler and the conductor, because he was not in a situation to determine that question. The conductor has the right to rely upon appearances, and if the ticket or book on its face does not apply to the plaintiff, or authorize him to ride upon it, then the conductor may enforce the reasonable rules of the company, even to the extent of ejecting the traveler from the train. It is hardly disputed that, so far as appearances were concerned, this plaintiff had no ticket or other evidence of any right to ride upon the train in question. She squarely refused to pay the regular and usual fare, and, therefore, within the clear authority of the above-cited case, the conductor was justified in putting her off.

It makes no difference that the plaintiff had paid her money and was entitled to a boob, proper in form, to permit her to ride upon it. She did not have such a boob, and, therefore, she was not in a position to .demand being carried without paying fare to the conductor.

If she has any claim against the company for issuing the ticket in the wrong name, that question must be determined in a proper action; but it is very clear that she neither had a ticket which authorized the conductor to carry her, nor, as against the conductor, did she have the right to be carried because she had paid for a book that she had not as yet received.

The situation was not substantially changed on August twenty-third, when the plaintiff a second time attempted to ride with this same conductor upon the same book, except that the plaintiff was then assured that under the defendant’s rules she could not ride upon that book until she had sent it in to the company’s office to be corrected. Olearly the action of the conductor had as full a justification the second time as it had the first.

Without discussing any of the many other questions raised in the case, for the reasons above given the judgment should be reversed.

All concurred.

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