
    George W. Sickels, Respondent, v. Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 15, 1906.
    Carrier — rule that passenger leaving elevated, railway station must pay another fare to return—liability in tort for enforcement of rule by carrier’s servants.
    ■ The rule of an elevated railway company that no one who hás left the platform shall he permitted to return without paying another fare is both reasonable and necessary when a great number of persons enter the station.
    The servants of the railjvay company have no discretion as to the enforcement x of said rule, and, a passenger who has paid his -fare, but before taking a tram leaves the platform to seek a lost paper cannot recover from the railway for indignities received in not being allowed to return without paying another fare, although the gatekeeper knew that he had previously paid a fare.
    Appeal by the defendant, the Brooklyn Heights Railroad CeSdipany, from- a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the .plaintiff, rendered -on the 16th day of. March, 1905. - ’ .
    
      
      H. F. Ives, for the appellant.
    
      Sanders Shanks, for the respondent.
   Miller, J.:

The plaintiff,, after paying his fare and passing through the turnstile at an elevated station, discovered that lie had lost a paper, and informed the defendant’s servant of his desire to go back and find it, but was told, that if he did so he would have to pay another fare to be admitted to the station platform. He found the paper on the stairs leading to the street, and, upon returning, demanded that he be allowed to go out upon the station platform without the payment of another fare, which was denied him, and for this refusal and the indignity to which "he claims to have been subjected he has recovered the judgment from which this appeal is taken.

It is undisputed that the defendant’s servants knew that he was the same person who had paid the fare and requested the privilege of being allowed to return to look for the paper. The printed rules of the company provided that no one should be allowed to. pass the ticket window unless a fare was paid, and the defendant’s evidence tended to show that its servants had been given oral instruction to the effect that no one leaving a station platform should be permitted to return to it without paying a fare, and while the respondent criticises the testimony upon this subject it is undisputed that the plaintiff was informed of the rule before leaving the station .platform.

The respondent does not question the reasonableness of the rule relied upon by the appellant, and in view of the number of persons daily entering these stations such a rule is both reasonable and necessary. But it is claimed that as the defendant’s servants knew that the plaintiff had paid a fare for which he had had no ride, it was unreasonable to enforce the rule. Ho case is cited to, sustain the proposition that the rule being reasonable the servant nevertheless has a discretion respecting its enforcement, and the case of Montgomery v. Buffalo Railway Co. (165 N. Y. 139) seems squarely to decide the converse of the proposition. The respondent • relies upon expressions in the concurring opinion of Judge Cullen in Monnier v. N. Y. C. & H. R. R. R. Co. (175 N. Y. 281) to sustain his contention. Bút the point there under discussion related to the conductor’s knowledge of the fact that the passenger’s failure to obtain a ticket was due to the fault of the defendant’s ticket agent, and it was held that the conductor was not bound to take the passenger’s Word for it. But, of course, it was assumed in the opinion that if thereonductor had had"actual knowledge of the fact that the passenger was unable to obtain a ticket owing to - the fault of the defendant an entirely different question would have been presented. In the case at bar the plaintiff left the station for his own purpose and not because of any fault of the defendant. He did this with full knowledge that another fare would be exacted if he again sought admittance to the "station platform. The turnstile is provided to register the fiumber qf persons passing through ; if the plaintiff had. been allowed to-pass through the" turnstile without paying a fare, an úncollected fai;e would have been charged to the defendant’s servant, and if the defendant’s servant were given discretion to ■ admit passengers to the platform except through the turnstile, the very object of providing the turnstile would be defeated ; other equally cogent reasons .might be given, but as the cases cited supra seem'to be,decisive of the question, we are content without further discussion or multiplication of authorities to place our decision upon the ground that the defendant’s servant had no discretion respecting the enforcement of the rule requiring the payment of another fare before the plaintiff could be readmitted to the station platform. If the plaintiff desired to test the question whether he had received any consideration for the fare already paid, he should have done so in an action to,recover it. " •

The judgment of ■ the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

..Judgment of the Municipal Court reversed and new trial ordered, costsdo abide "the event.  