
    (55 Misc. Rep. 203)
    ENGEL v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    June 27, 1907.)
    1. Trial—Directing Verdict—Credibility of Witnesses.
    Where the evidence presented an issue of fact, and the plaintiff alone testified in support of her cause of action, it- was error to direct a verdict , for the plaintiff and withhold from the jury the right to pass upon her credibility.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 335.]
    2. Penalties—Actions—Proof.
    Where an action is brought to recover a penalty, the plaintiff should be held to a strict .proof of the cause of action.
    [Ed. Note.—For cases in point, see Cent Dig. vol. 39, Penalties, § 34.]
    
      Appeal from Municipal Court, Borough of Manhattan, Eleventh District.'
    Action by Eva T. Engel against the New York City Railway Company. Erom a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GIEDERSEEEVE, P. J., and SEABURY and PEATZEK, JJ.
    Joseph D. Kelly, for appellant.
    Charles I. Engel (Robert Beyer, of counsel), for respondent.
   PER CURIAM.

This is a transfer case, and was tried before a jury. At the close of the whole case the trial justice directed a verdict for the plaintiff over the objection of the defendant. The defendant expressly requested permission to go to the jury upon the question of fact raised by its controverting proof, which was denied, and an exception thereto taken.

The plaintiff claims to have boarded the car at Broadway and Duane street; her destination being Lenox avenue and 138th street. The car she boarded was a Lexington avenue car. She testified that she asked for a transfer to enable her to take a car at 125th street, intending to ride west on that street, and. then north on Lenox avenue to her home on 138th street, and that a transfer was refused her. The defendant proved that at the time of the "alleged refusal it had instituted a system of, and was giving, transfers from the Lexington avenue line east and west on 125th street. The plaintiff alone testified in support of maintaining her cause of action. The plaintiff being an interested witness, it was error to withhold from the jury the right to pass upon her credibility. They may have disbelieved her statement that she was refused a transfer. It was, therefore, error to direct a verdict for the plaintiff. MacDonald v. Metropolitan Street Railway Company, 167 N. Y. 66, 60 N. E. 282.

The action being for a penalty, the plaintiff must be held to strict proof.

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