Dista v. Westchester Electric R. , 103 N.Y.S. 738 ( 1907 )

GIEGERICH, J.

The judgment must be reversed because of the failure on the plaintiff’s part to prove that the car on which she was riding at the time of her injury was operated by the defendant. All the competent evidence offered went to show that, not the defendant, but the Union Railway Company, operated the cars on the line on which the plaintiff was injured. The only thing having a tendency to show that the defendant operated them was a transfer,slip bearing its name; but, aside from any other question as to the significance of this slip, there was an entire absence of evidence to show that such use of its name was authorized by the defendant. In fact, the" defendant’s superintendent testified that it was issued by the Union Railway Company, and not by the defendant. On the record as presented, the complaint should have been dismissed for failure of proof.

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