
    Ursula A. Miller, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 5, 1908.
    Assault and battery—ejecting passenger from car—jurisdiction of Municipal Court—forcé not excessive.
    An action by a passenger on a surface car to recover for injuries received when forcibly ejected for a refusal to pay the fare except by an invalid transfer is not on contract but for assault and battery and the Municipal Court of the city of Mew York has no jurisdiction.
    Under the circumstances the defendant had a right to" use the force necessary to. eject the plaintiff, and in the absence of evidence that excessive force was used there can be no recovery.
    
    
      Appeal by the defendant. The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plsfintiff.
    
      F. R. Stoddard, Jr., for the appellant.
    
      David J. Wagner, for the respondent.
   Gaynor, J.:

The complaint alleges that' while the plaintiff was a passenger on one of the defendant’s cars she was violently assaulted and beaten by the defendant and that the defendant used insolent, abusive and offensive words ” toward her. The evidence is that the plaintiff got on the car and refused to pay her fare except by a transfer ■ticket which was. not gopd for that line of cars, and refusing to get off at the demand of the conductor, he took hold of her and tried-to put her off, the rhotorman refusing to assist him; whereupon a passenger paid- her fare. ■ She also testified that the conductor called her a beat, and the like, both before and after her fare was paid. The Municipal Justice charged the jury that the defendant had the right to put her off, and was liable only for any excess of force used by the conductor. This certainly made the case one for a battery, if the complaint did not, instead of for a breach of contract, and the Municipal Court has no jurisdiction of actions for assault or battery (Municipal’ Court Act, sec. 1, sub. 14). The defendant had the right to use force, and any excess of force was not a breach of contract to carry safely, but a battery —if we were, to assume that there was any contract in this case with a passenger who would not ' pay her fare. Moreover, there was no evidence of excessive force. ■ Ho force was used except strictly in the way of putting the plaintiff off, and enough was-not used for that purpose.

The judgment should be reversed.

Woodward, Jenks, Rich and'Miller, JJ., concurred. .

Judgment of the Municipal Court reversed and new trial ordered, .costs to abide the event,  