
    GASPER v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    June 28, 1906.)
    Carriers—Regulation—Street Railroads—Refusal of Transfer—Penal-TT.
    A street railway company is not liable for refusal of a transfer where a passenger, though desiring to go south on Avenue A, merely asks for an Avenue A transfer, and is given one good only on a north-bound car.
    Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
    Action by Evelyn Gasper against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GIEDERSEEEVE, LEVENTRITT, and Mc-CAEE, JJ.
    Frank D. Wynn, for appellant.
    N. E. Reach, for respondent.
   PER CURIAM.

There is a difference in the record before us in this case, which in our judgment makes a distinction from that of the case of Erma Gasper v. New York City Railway Co. (decided by us at this term) 99 N. Y. Supp. 902, and calls for the reversal of this judgment. In the Emma Gasper Case the request of the passenger was clearly made for a transfer "south” along Amsterdam avenue, and we have decided that this was refused. In the case under consideration the proof is that the plaintiff asked for a transfer to Amsterdam avenue, and she received same. As this action is for the recovery of a penalty based upon the refusal to obey the mandate of a statute, we feel, that judgment should be sustained only upon strict proof of the violation thereof, and upon this record we do not believe the necessary refusal has been established.

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