
    MEYERS v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    April 10, 1907.)
    Carriers—Street Railroads—Refusal op Transfer—Penalties—Evidence.
    Where, in an action against a street railway company for refusal to give plaintiff a transfer, he was unable to testify with certainty whether such refusal occurred on December 14 or 21, 1905, and a statement that his cause of action accrued on the latter date was based on an entry in his book, made the morning of the trial, which occurred March 6, 1906, he was not entitled to recover.
    Appeal from Municipal Court, Borough of Manhattan, Third District.
    Action by Herman Meyers against the New York City Railway Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed.
    See 101 N. Y. Supp. 750.
    Argued before GIEDERSLEEVE, P. J., and GIEGERICH and EREANGER, JJ.
    Harcourt Bull, for appellant.
    James L. Quackenbush, for respondent.
   PER CURIAM.

Plaintiff brought this action to recover the penalty provided by statute for a refusal by the defendant to give a transfer; the defendant having a judgment in its favor. The plaintiff was the only witness sworn in his own behalf. Pie was first asked by his-counsel if on “December 14,1905,” he desired to make a trip on defendant’s cars from Second avenue and Fourth street to Seventeenth street and Avenue C, and he said, “Yes, sir.” Upon being shown a transfer, which the conductor on the Avenue C line refused to accept for transportation, he testified that as to his dates he was “mixed up.” He was then shown some cards, upon which appeared the dates of December 14 and 21, 1905, and he testified that he made a trip on December 21st. Again, upon being asked if he had a clear recollection of what transpired on December 14th, he replied, “Yes, sir;” but later on in his testimony said:

“I thought it was the 14th. I made a mistake. I think it was the 21st. I can show it in the book. I made it out this morning when I did not have anything to do. Q. You wrote it yourself this morning in the book? A. Yes, sir; it shows I was refused a transfer on the 21st.”

This action was tried March 6, 1906, and his statement that his cause of action accrued on December 21, 1905, is evidently based upon an entry in his book made the morning of the trial. He concluded his testimony, however, by referring to his having taken a trip on the 14th. The testimony of the plaintiff is so uncertain as to the exact date upon which he bases his cause of action, he apparently having many actions pending of a similar character, based upon alleged refusals, at dates just prior to or immediately following, the date attempted to be proven in this action, that the court below was justified in refusing to give a judgment in his favor.

Judgment affirmed, with costs.  