Opinion
June, 1907.
Joseph D. Kelly, for appellant.
Charles I. Engel (Robert P. Beyer, of counsel), for respondent.
This is a transfer case and was tried before a jury. At the close of the whole case, the trial justice directed a verdict for the plaintiff over the objection of the defendant. The defendant expressly requested permission to go to the jury upon the question of fact raised by its controverting proof, which was denied, and an exception thereto taken. The plaintiff claims to have boarded the car at Broadway and Duane street, her destination being Lenox avenue and One Hundred and Thirty-eighth street. The car she boarded was a Lexington avenue car. She testified that she asked for a transfer to enable her to take a car at One Hundred and Twenty-fifth street, intending to ride west on that street and then north on Lenox avenue to her home on One Hundred and Thirty-eighth street, and that a transfer was refused her. The defendant proved that at the time of the alleged refusal it had instituted a system of, and was giving, transfers from the Lexington avenue line east and west on One Hundred and Twenty-fifth street. The plaintiff alone testified in support of maintaining her cause of action. The plaintiff being an interested witness, it was error to withhold from the jury the right to pass upon her credibility. They may have disbelieved her statement that she was refused a transfer. It was, therefore, error to direct a verdict for the plaintiff. McDonald v. Metropolitan St. R. Co., 167 N.Y. 766. The action being for a penalty, the plaintiff must be held to strict proof.
Present: GILDERSLEEVE, SEABURY and PLATZEK, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.