
    Isaac Jacobs, Respondent, v. The Third Avenue R. R. Co., Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Assault ■ — Ejection of passenger from street car for failure of the conductor of the car of another corporation to give him a valid transfer slip.
    Where two street railroad corporations have no contract relations other than an agreement that each should without charge carry passengers transferred from the cars of the other at intersecting points, a failure of the conductor of the car of the first corporation to give a passenger, thereon a transfer slip, valid under the reasonable rules of the second corporation, and resulting in his ejection from its car without unnecessary force for non-payment of fare, affords the passenger no ground for recovering against the second corporation as for an assault committed upon him by its servant.
    Jacobs v. Third Ave. R. R. Co., 33 Misc. Rep. 802, reversed.
    Appeal from an affirmance by General Term of the City Court of the city of Hew York, of a judgment entered upon a verdict in favor of the plaintiff.
    Hoadly, Lauterbach & Johnson (Henry L. Scheuerman and Henry Siegrist, Jr., of counsel), for appellant.
    Horwitz & Samuels (S. Livingston Samuels, of counsel), for respondent.
   Bischoff, P. J.

The action is for assault, founded upon the act of a conductor in the employ of the defendant in causing the plaintiff to be ejected from one of its street cars on Third avenue. Damages were claimed, also, for an arrest, alleged to have been incidental to the ejection, but the accepted theory of the case is that no unnecessary force was used, there being no ground for holding that the arrest was unlawful, the cause of action depends upon the question whether the plaintiff was or was not excused from paying his fare upon his tender of a transfer ticket which had been issued to him by an employee of . another corporation, the Dry Dock Railroad Company.

It appears that the latter corporation and the defendant were parties to an agreement which provided simply that each should carry passengers transferred from the cars of the other, at intersecting points, without extra charge, this being the extent of the recital of the contract admitted by the pleadings and nothing further being disclosed by the proof. A transfer slip was handed to the plaintiff shortly before his leaving the Dry Dock car and he took passage without unnecessary delay upon the defendant’s car, but owing to a mistake made by the first conductor the slip was not acceptable under the reasonable regulations of the defendant; hence the plaintiff’s ejection upon his refusal to pay his fare.

The authorities support a cause of action, in tort, where the obedience of the reasonable rules of the company by one employee in refusing to receive a defective transfer or stop-over ticket, issued through the mistake of another employee of the same company, results in the invasion of an innocent passenger’s rights (Muckle v. Rochester R. Co., 79 Hun, 32; Eddy v. S. R. T. Co., 50 App. Div. 109; Tarbell v. R. R. Co., 24 Hun, 51; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Ray v. Cortlandt & H. T. Co., 19 App. Div. 530), but the liability of the common employer in such a case is traced directly to the mistake of the servant whereby the wrong was caused.

In the case at bar the defendant’s servant was justified in the attitude assumed towards the plaintiff and there was no such community of enterprise upon the part of these two corporations as would suffice to charge the defendant with the consequences of the neglect upon the part of the Dry Dock Company’s employees.

The business of each company was wholly independent of the other, and, so far as is shown, there was no common interest in the fares received nor in identity of management .such as would be essential to the imposition of the liability sought to be asserted in this action. Am. & Eng. Ency. of Law (2d ed.), 655, 657, 658; Minlor v. N. Y. & N. H. R. R. Co., 4 Daly, 355; 53 N. Y. 368.

The plaintiff’s contract was with the Dry Dock Company, whose duty to him probably included the issuance of a valid transfer slip, but, as against the appellant his rights are no stronger than they would have been if, instead of receiving a defective transfer slip, he had been refused one altogether by the Dry Dock Company and had sought to justify the omission to pay his fare to the defendant by the assertion of the Dry Dock Company’s default.

If it be assumed that the plaintiff could treat the contract between the companies as made for his benefit, there was still no failure of performance upon the defendant’s part, for it was required only to transport passengers who had been duly transferred, and, through the error of the Dry Dock Company, the plaintiff was not thus qualified.

The recovery below was without support, upon the record, and the. exceptions taken amply present the question of law upon which the soundness of the verdict depends.

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

Levehtritt and Clarice, JJ., concur.

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