
    Henry Hoelljes, Respondent, v. The Interurban Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1904.)
    Street railroad — Passenger ejected from a car for wrongfully refusing to pay his fare — Measure of damages.
    A passenger upon a car of a street surface railroad company, operating in the city of New York, who, upon being refused a transfer to a connecting line to which he deems himself legally entitled, instead of leaving the car and suing for the penalty prescribed for such a refusal, remains in the car to the end of its route, and until after it starts upon its return trip, and then refuses to pay fare on that trip becomes by that refusal a transgressor and can recover no damages of the company for his consequent ejection from the car.
    Appeal from a judgment rendered upon the vérdict of the jury, in favor of the plaintiff, after trial before Mr. Justice Murray, in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.
    Henry W. Goddard and William E. Weaver, for appellant.
    Henry Hoelljes, respondent, in person.
   McCall, J.

This is an action from which, during the progress of the trial, every question was eliminated except that involving the damages which ensued by an alleged improper ejectment of the plaintiff from one of the cars owned and operated by the defendant corporation. The plaintiff boarded the car at Twenty-third street and Second avenue, bound north. His ultimate destination was some point north of Fifty-ninth street on Columbus avenue. When the car reached Fifty-ninth street, the plaintiff secured a transfer and hoarded a car going west along that street, and he asserts that he delivered to the conductor of this car the transfer he had obtained from the Second Avenue line. There was some dispute as to this, but, whatever the fact may have been, the jury have settled it in favor of the plaintiff, and we will take it as established that way. When the Fifty-ninth Street car reached Columbus avenue the plaintiff asked for a transfer north on that line, and was refused. Some argument ensued between him and the conductor as to whether or not he had paid his fare or delivered his transfer from the Second Avenue line. He remained on the car while it continued west, and was still a passenger upon it at the end of its westerly route. When the Fifty-ninth Street car was on its westward trip and he had asked for and was refused his transfer, if he desired to stand upon his rights he should have left the car and sought the remedy the law vouchsafes for such a wrong in the definite and requisite penalty it fixes for such a transgression. In doing what the record shows he did, riding to the end of the westerly route, he was within his rights, and to that extent they could not be gainsaid. In remaining aboard the car when it started easterly on its return trip, he was exercising a privilege no one could deny, but when a fare was demanded of him and he refused to pay, he was transgressing and he invited the personal encounter which resulted in his forcible expulsion, and the company is not liable for what followed. Even though he had paid his fare on this return trip, it has been determined by the court, in a ease like the one at bar, that when no physical injury resulted, the measure of damage was the five-cent extra fare the passenger was forced to pay because of the ejectment. Moon v. Interurban St. R. Co., 85 U. Y. Supp. 363. But in the case at bar, when the facts are so clear as to nonpayment of fare when demanded, the complaint should be dismissed.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

Freedmah, P. J., concurs.

G-iegebich, J., concurs in result.

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