
    Emanuel A. Busch, Appellant, v. Interborough Rapid Transit Company, Respondent.
    First Department,
    January 26, 1906.
    Complaint—when allegations of assault show breach of contract to carry — damages for. assault recoverable in action for breach of contract to carry—jurisdiction of Municipal Court of New York.
    A complaint which alleges that the plaintiff purchased a ticket for the purpose of being carried on defendant’s cars and paid the fare required, and that in consideration thereof the defendant agreed to carry and to treat him properly, but, in violation of “ said contract,” made him buy another ticket and assaulted and ' arrested him, etc., states an action arising on the breach of a contract to carry and not an action for assault and battery with false imprisonment.
    Hence, the Municipal Court of the city of New York has jurisdiction of such action.
    The assault may be.alleged to show the breach of the contract to carry properly. On the purchase of such ticket and delivery of the same to the defendant’s collector the relation of carrier and passenger commences although the plaintiff is only upon the defendant’s platform, and from that time the defendant is liable for all damages caused by. the negligence or willful misconduct of its servants, as assault and injury to feelings by insult.
    Appeal by the plaintiff, Emanuel A. Busch, from an order of the Appellate Term of the Supreme Court, entered on the 15th day .of May, 1905, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff; entered in. the office of the clerk of said court on the 2d-day .of February, 1905,. upon the verdict of. a jury'and dismissing the plaintiff’s complaint.
    
      Charles Goldsier, for the appellant.
    
      Theodpre L. Waugh, for the respondent,
   McLaughlin, J.:

The plaintiff brought an action in the Municipal Court of the city of New York to recover $500, the damages alleged to have been sustained by him. The facts entitling him to such damages, as set out in his complaint, were that the defendant is a corporation engaged in transporting passengers for hire.in such city; that he became a passenger of the defendant for the purpose of being, car-' ried on one of its cars to a certain destination; that he paid the fare required,-in consideration of which defendant agreed to safely Carry, him to, such, destination and to treat him properly while, en route;, that after he had paid such fare .lie “entered, in and upon one of the stations of the defendant and that.the defendant through . its agénts and employees,, wrongfully, illegally and in violation of • the terms of said , contract, assaulted- the plaintiff and caused one; of its agents to take violent hold of this plaintiff and-push, pull, maul ■ and otherwise maltreat him and caused police officers.to assault and arrest this plaintiff without: any charge or provocation .and detain him forcibly and against his will under arrest,and without-any warrant' of law and without any causé for the space- Of fifteen (15) minutes and to assault, pull, haul, maul and push this plaintiff and . .derange his clothing, and.caused and permitted one of its agents, in the presence of a large concoursé’of people, to call this plaintiff a liar and charge him with having-attempted fraudulently to take passage upon one of the defendant’s trains without the payment of the fare and to threaten and, otherwise maltreat and insult this plaintiff.” The answer denied the material allegations of the - complaint.

. Upon , the issue thus formed the parties went to trial and the plaintiff’s, proof tended to show that at the .time statéd in the com-' plaint he entered a station of the defendant’s road in company with a friend; that he then purchased two tickets, one for himself and one for his friend, and put them in the ticket box, and passed to the platform where he stood waiting for a train to arrive; that after he had passed to the platform the person in charge of the ticket box, termed in the record a ticket chopper,” accused the plaintiff of having placed only one ticket in the box, and when he assured him he had placed two tickets there such person called him a liar, a thief, a sheeny, and accused him of cheating, took hold of him and instructed an officer then present not to permit plaintiff to go upon the train ; that he was detained by such officer about fifteen minutes and was only allowed to go upon the train by purchasing another ticket.

The testimony on the part of the defendant tended to prove that the plaintiff deposited only one ticket in the box and that he was informed he could not go upon the train until he purchased another ticket, which he did.

The plaintiff had a verdict for $250, upon which judgment was entered, from which, an appeal was taken to the Appellate Term. There the judgment was reversed and the complaint dismissed upon the ground, as appears from the prevailing opinion (93 B. Y. Supp. 372), that the complaint states a cause of action for assault and battery and false imprisonment and for nothing else.” The plaintiff, by permission, appeals to this court.

If the action were brought to recover damages ■ for assault and battery, then the Appellate Term was right in reversing the judgment and dismissing the complaint, because the Municipal Court does not have jurisdiction to try actions of that character. (Municipal Court Act [Laws of 1902, chap. 58.0], § 1, subd. 14.) But was this action to recover damages for assault and battery or was it to recover damages for the breach of a contract? The answer to these questions, of course, depends upon all the allegations of the complaint. As I read the complaint,' it was clearly .to recover damages for the breach of a contract. It alleged that the plaintiff, for the purpose of being carried in one of defendant’s cars, paid the fare required, in consideration of which defendant promised and agreed to carry him and to treat’ him properly, and that after he had paid the fare demanded and entered the station where he was to take the, car, the defendant through its agents violated the terms

of.“said cmxtract” by doing certain things. It is true the facts pleaded show that an assault was committed, but these facts were pleaded for the purpose of showing a breach of the contract, which ' was not only to transport the plaintiff safely to his destination, but ■ to treat him properly while en route. (Hart v. Metropolitan Street R. Co., 65 App. Div. 493 ; Hines v. Dry Dock, E. B. & B. R. R. Co., 75 id. 391; Rein v. Brooklyn Heights R. R. Co., 47 Misc.. Rep. 675 ; 94 N. Y. Supp. 636.) The proof tended to establish the allegations of the complaint, and the jury having found in , plaintiff’s favor, the same must’ be accepted as truel This .finding established that the plaintiff purchased two tickets and deposited the same in the ticket box provided by the defendant. When he purchased his tickets and delivered’the same to the defendant by depositing them in this box and went upon the platform, that moment the relation of carrier and.passenger commenced and there- ' after defendant became responsible for all consequences to the plain- ' tiff as á passenger and was liable to him for the willful misconduct, or negligence of the persons employed by.it in carrying out the contract. ■ (Palmeri v. Manhattan R. Co., 133 N. Y. 261.) lie was' just as much a passenger after he had entered upon the platform as he would have been had he entered a car. The relation was pre- , ' cisely the same, because he got upon the platform only by the. pur- ' chase and surrender of his ticket. (Gordon v. Grand Street & Newton R. R. Co., 40 Barb. 546 ; Webster v. Fitchburg Railroad, 161 Mass. 298 ; Donovan v. Hartford Street Ry. Co., 65 Conn. 201 ; 5 Am. & Eng. Ency. of Law [2d ed.], 488, and cases cited.) ^ ’ - Being- a passenger, the plaintiff was entitled- to be properly treated by the defendant’s agents,- and it was liable for damages inflicted by ah assault Of one of - its servants, as well as the injury to plaintiff’s feelings by the. insulting language used (Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347 ; Palmeri v. Manhattan R. Co., supra ; Dwinelle v. N. Y. C. & H. R.R. R. Co., 120 N. Y. 117 ; Stewart v. Brooklyn & Crosstown R. R. Co., 90 id. 588 ; Hamilton v. Third Ave. R. R. Co., 53 id. 25 ; Eddy v. Syracuse Rapid Transit R. Co., 50 App. Div. 109), and it was for the jury to say, upon all of the evidence, what the amount of such damage . was. (Miller v. King, 166 N. Y. 394.) • .

- It follows, therefore, that the determination of the Appellate Term must be reversed and the judgment of the Municipal Court affirmed, with costs in this court and in the Appellate Term.

O’Brien, P. J., Laughlin and Houghton, JJ., concurred; Patterson, J., concurred in result.

Determination' reversed and judgment of Municipal Court affirmed, with costs in this court and in the Appellate Term.  