
    Samuel Arthur De Waltoff, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      Action for an assault by a street can' conductor — answer containing a general denial and a special plea that plaintiff was removed foi' non-payment of fare — the admission in the special plea cannot be accepted in part and rejected as to the remainder.
    
    The answer interposed in an action brought against a street railway company by a passenger upon one of its cars, who claimed that he had been assaulted by the conductor thereof, contained a general denial and alleged for a “second, further and separate defense ” that the plaintiff refused to pay his fare; that thereupon the conductor requested him to leave the car, and. that, upon his refusal, the said conductor “ then and there gently laid his hands upon the plaintiff and removed him from the said car, doing him no unnecessary violence, as he lawfully might do; that this act is the act complained of in the complaint.”
    
      Held, that the answer did not contain an admission of the assault entitling the plaintiff to, at least, nominal damages;
    That, as the defendant had interposed a general denial, the plaintiff was bound to prove his case and could not depend upon any admission in the special plea as if it were made generally in the action;
    That, if the plaintiff wished to avail himself of an admission in the answer, he must accept it entirely and could not accept a part and reject the remainder.
    Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of November, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore H. Lord and Henry A. Bobmson, for the appellant.
    
      JEugene V. Brewster [Isaac Siegel with him on the brief], for the respondent.
   Jenks, J.:

We are of opinion that this judgment and order cannot stand. The plaintiff complained that while a passenger on the car of the defendant he was assaulted by a conductor. _ The defendant answered in general denial, and for a “second, further and'sep'arate defense” alleged that the plaintiff refused to pay his fare; that thereupon the conductor requested him to leave the car, and that upon refusal, the said conductor “then and there gently laid his hands npon the plaintiff and removed him from the said car, doing him no unnecessary violence, as he lawfully might do; that this act is the act complained of in the Complaint.” The learned court, charging the jury, said: “ Under all those circumstances, taking'all that into account, are you satisfied that the plaintiff was assaulted by th¿ conductor and violently put off the car? I think they admit an assault. Mr. Ridgway (counsel for the defendant): We do not admit it, your honor. The court: They do not admit that they kicked him,' but they do admit an assault at Grand street, and they justify it by saying that he had not paid his fare, and that they put him off. There is not any attempt to show that he had not paid his fare; there is not any attempt to show that he had not a right to ride, and to ride to the end of the road, if he wanted to, and yet they admit that they put him off, and that was an assault., * * * Therefore, I charge you that the plaintiff has a right to recover at least nominal damages, so that it becomes really, a question of how much he is entitled to recover.” At the close of the charge the learned counsel for the defendant excepted to that portion of the charge that the jury must find that there was an assault, and the court answered that the defendant admitted that the condiictor put the plaintiff off the car. Thereupon the learned,counsel for the defendant excepted, and also took an exception as to a part of the charge bearing upon the testimony of the witnesses for the defendant. After the court had responded, the learned counsel for the defendant then said: “ In that connection, I wish your honor to charge the jury that they are the sole judges of the facts in this case, and that unless they believe that the plaintiff has proven, by truthful testimony entitled to credence, his cause of action, he cannot recover here. The court: I will not charge that. Hr. Ridgway: I except to the refusal to charge as requested. The court: I charge he has a right to recover at least nominal damages, because the defendant admits that they put him off the car, and assigns as a reason that he had not paid his fare, and there is no evidence that he had not paid his fare. * * * Hr. Ridgway: I request your honor to charge the jury that there is no evidence offered upon the part of this plaintiff showing that they ejected him from the car at Canal street. The court: No, but there is practically an admission in the answer that they did put him off the car. The plaintiff alleges that they put him off — alleges that they assaulted him and kicked him off, practically, and the defendant says, ‘No, we did not assault him or kick him off, but he had not paid his fare, and we gently put him off; ’ but they admit that they put him off at or near Canal street.”

/

As the defendant made a general denial, the plaintiff was bound / to prove his case and could not depend upon any admission in the ’ special plea as if it were made generally in the action. (Troy & Rutland Railroad Company v. Kerr, 17 Barb. 581; Young v. Katz, 22 App. Div. 542, per Bradley, J.; Duschnes v. Heymam, 2 id. 354.) Horeover, the defense did not admit an assault; it stated affirmatively that the conductor, upon refusal of the plaintiff to pay his fare, put the passenger off the car gently and without unnecessary violence, setting forth that this was the act of which the plaintiff complained. If a plaintiff would avail himself of an admission in an answer as a pleading, he must accept it entirely ; he cannot accept a part and reject a part thereof. (Shrady v. Shrady, 42 App. Div. 9, 13; Oakley v. Oakley, 69 Hun, 121; Duschnes v. Heyman, supra; Goodyear v. De La Vergne, 10 Hun, 538; Vanderbilt v. Schreyer, 21 id. 537; Albro v. Figuera, 60 N. Y. 630.) Unless, then, the mere act of ejection of a passenger upon his refusal to pay fare and the use only of such force as is necessary for that purpose is, fjer se, an assault for which the master is liable, there was no admission in the answer as a pleading which warranted the ruling of the learned court. We reverse without any expression of opinion upon the merits of the case.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and" order reversed and new trial granted, costs to abide the event.  