
    MADDEN v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    June 1, 1906.)
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by Daniel F. Madden against the New York City Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed, and new trial granted.
    Argued before GILDERSLEEVE, DAVIS, and CLINCH, JJ.
    Harcourt Bull, for appellant.
    William E. Weaver, for respondent
   PER CURIAM.

Plaintiff sued to recover a penalty of $50 under section 104 of the railroad law (Laws-1890, p. 1114, c. 565, as amended by Laws 1892, p. 1406, c. 676), for refusal to give a transfer. The learned trial justice rendered judgment for defendant, and against the plaintiff, for $10 costs.

As in the other case of Madden v. Railway (No. 155 on calendar) 99 N. Y. Supp. 320, the plaintiff’s case rested solely upon certain formal admissions of defendant and the plaintiff’s own testimony. The trial justice, in order to arrive at his judgment, must have rejected the testimony of the plaintiff. For reasons similar to those set forth in action No. 155 and No. 93, we think he was not justified in so treating the plaintiff’s testimony.

The judgment should be reversed, and,a new trial granted, with costs to appellant to abide the event. Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102; Littlefield v. Lawrence, 83 App. Div. 327, 329, 82 N. Y. Supp. 25.  