
    Marcus Braun, Respondent, v. Seward Webb, as President of The Wagner Palace Car Co., Appellant.
    (City Court of New York, General Term,
    July, 1900.)
    Negligence — Verdict of §750 to a sleeping-car passenger compelled to sit up all night in a day coach.
    A verdict of §750 is not excessive in the case of a sleeping car passenger who, after he had paid for his berth and had had it assigned to him, was subsequently excluded therefrom and compelled to sit up during a cold night in a day coach, because the company by mistake had sold the same berth to another person who occupied it.
    Reargument of an appeal from a judgment of the City Court of the city of New York, entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial on the minutes.
    Action by a passenger to recover damages for being excluded from a sleeping car of the defendant. The plaintiff, a newspaperman, on the morning of July 10, 1899, at Cleveland, O., secured and paid for a lower berth on the evening train for blew York. On reaching the train the berth was assigned to him but, as appeared a few minutes later, had been also sold to other persons, and they occupied it. The plaintiff sat up all night in a day car. The night was cold. The jury rendered a verdict for $750.
    Saunders, Webb & Worcester (Thorndike Saunders, of counsel), for appellant.
    Morris Cukor, for respondent.
   Hascall, J.

Reading the case from the appellant’s standpoint, the position most favorable to him, and even conceding that his reiteration of the facts is beyond criticism, the question still is, was the jury justified, by the evidence, in its verdict?

Payment to the car company of the charges demanded by it for occupancy of the sleeping berth, hours before the departure of the train; receiving the respondent as a guest at the time of starting; assigning him his cot and section for the night, and making his bed, were certainly acts of common and every-day occurrence. But then to have a conductor tell him, without prior or timely warning: “ Well, you cannot have that berth * * * because it is occupied by some one else,” to be compelled to sit up all night in an ordinary day coach, or secure such rest as he might therein, to be told upon his application for redress “ you ,can have back only your money ” furnish, altogether, cold comfort for a passenger treated, as the record shows, in such manner as was this respondent. If the jury had been over liberal, in appellant’s estimation,- in naming a just compensation to respondent, we still think, the judgment under all the evidence, just, and that it ought to be maintained.

Judgment and order appealed from affirmed, with costs.

Schuchman, J., concurs.

Judgment and order affirmed, with costs.  