Thistle v. New York City Railway Co. , 104 N.Y.S. 401 ( 1907 )

Brady, J.

The plaintiff, according to her own testimony, boarded a Broadway car bound south; paid her fare and asked for a transfer to Canal street. It does not appear from the testimony that she informed the conductor as to what direction on Canal street she desired to go. She received a transfer. She testified that she changed cars at Canal street, boarded a west bound car on that street, offered the transfer to the conductor and that the same was refused by him and that she thereupon paid a second fare. The proof shows that the transfer was good on Canal street cars going in an easterly direction from Broadway. In Gaspar v. New York City R. Co., 51 Misc. Rep. 43, this court held that, inasmuch as the action 'was to recover a penalty based upon a refusal to obey the mandate of a statute, the recovery should be sustained only upon strict proof of the violation thereof, and that, as. the passenger had only asked for a transfer td Amsterdam avenue, without specifying the direction required, and received one which was good on a car going north, she did not establish a refusal, although she desired to make the trip in a southerly direction and the transfer was not accepted on a car going south. The facts in the present case were similar, and the doctrine laid down in the case cited controls.

Gildersleeve and Seabury, JJ., concur.

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