Opinion
June, 1914.
Arthur Hutter, for appellant.
James L. Quackenbush (W.J. Shiels, of counsel), for respondent.
Plaintiff, at Thirty-fourth street and Fourth avenue, boarded a south bound Fourth avenue car without noticing whether it was a short or long service car. He asked the conductor for a Delancey street transfer and a transfer was given to him. At Eighth street and Fourth avenue (not Astor place and Broadway), the conductor "asked the passengers to get off the car and go further south where they wanted to go." Plaintiff then boarded the next car which was a Williamsburg bridge car of the Fourth avenue line. He was told the transfer was not good, refused to leave and was put off.
On these facts, the question arises whether the defendant is not guilty of a breach of contract, in refusing to carry the plaintiff in the manner to which he was entitled by the payment of his fare.
I shall assume, under the rule laid down in Baron v. New York City R. Co., 120 A.D. 134, that the company may lawfully run short service cars stopping at Astor place and long service cars to Williamsburg bridge and Brooklyn bridge respectively, and, if they are adequately marked or the conductor notifies the passenger on boarding the car, may require passengers, if they wish to go beyond the short service terminal, to take only long service cars. But in the case at bar, there is no proof that the car boarded by the plaintiff was adequately marked. On the contrary, the very fact that the conductor gave him a transfer to the Delancey street car, which intersected defendant's line at a point far beyond the Astor place terminal, was at least some indication to plaintiff that the car was not a short service car.
The next question, therefore, that arises is, assuming that plaintiff, under these circumstances, was entitled to be transferred to a car of a line which intersected defendant's line at Delancey street, was the regulation of the defendant that he must use such transfer on the Broadway car at Broadway and Astor place rather than on a long service car of the Fourth avenue line at Eighth street and Fourth avenue a reasonable one. On this point the case of Charbonneau v. Nassau Elec. R. Co., 123 A.D. 531, is decisive to the effect that the passenger is entitled to a transfer by the most direct route. Moreover, the fact that the conductor told the passenger to alight at Eighth street and Fourth avenue in order to go further south is an indication either that the defendant had made provision for transfers farther south upon its own long service cars or that the conductor had misdirected the plaintiff in this respect, in either of which contingencies the plaintiff would be entitled to recover.
In the absence of any proof by the defendant of the reason or purpose of its refusal to accept the transfer of the plaintiff on the Williamsburg bridge car pursuant to some appropriate regulation, the judgment must be reversed and a new trial granted with costs to appellant to abide the event.
SEABURY and PAGE, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.