
    Charles W. Kappes, Appellant, v. The New York City Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Taking case from jury and ñon-suit — Weight and sufficiency of evi- . dence — Uncontroverted evidence.
    Where the plaintiff is sworn upon his own behalf in support ol his cause of action and testifies to sufficient facts, his character is unimpeached, he is not contradicted and his- story is not improbable, a dismissal of his complaint is error.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of hTew York, seventh district, borough of Manhattan*
    L. J. Bondy, for appellant.
    William E. Weaver, for respondent. '
   Pee Curiam.

Plaintiff sued to recover a penalty of fifty dollars under section 104 of the Railroad Law for refusal to give a transfer. Except for certain admissions made by the defendant, the plaintiff’s case rested upon his own testimony. The defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish a cause of action. This motion was granted, and judgment for ten dollars costs was rendered against the plaintiff and in favor of the defendant. We must conclude from this record that the learned trial justice refused to believe the plaintiff, and on that ground dismissed the complaint. We can find no good reason in the record for thus rejecting plaintiff’s testimony. TTis character was not impeached and he was uncontradicted, although he gave the number of the car and of the conductor who refused to give the transfer. His story was not improbable. Plaintiff’s statement, if true, entitles him to judgment. Hnder the circumstances we think it was error to dismiss the complaint.

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, 572; Littlefield v. Lawrence, 83 App. Div. 327, 329.

Present: G-ildebsleeve, Davis, and Clinch, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.  