Kunzmann v. New York & Rockaway Beach Railroad , 27 N.Y.S. 132 ( 1894 )

Van Wyck, J.

In the complaint it is alleged that defendant is a corporation and a common carrier of passengers between Flatbush avenue, Brooklyn, and Rockaway Beach, Queens ■county, and was or is the owner or lessee in possession of the engines, cars, tracks and switches operated and used by it between said termini, and the employer of the conductors, engineers and brakemen employed in and about said engines and .cars, and that plaintiff was injured, while alighting at Franklin : avenue station, Brooklyn, from one of said cars, through the .negligence of those in charge thereof. The answer denies every .allegation except that defendant is a corporation. From the judgment in favor of plaintiff this ajjpeal is taken. A careful perusal of the testimony discloses no satisfactory evidence that defendant was the owner or lessee in possession of the train or the tracks, or the employer of those in charge of the train. There is no proof of what, if any, roadbeds or tracks the defendant owns, or where the same begins or ends, and it is uncontroverted that this train, at the time of the accident, was on Atlantic avenue, Brooklyn, at Franklin avenue station, on the tracks of the Long Island Railroad Company. There is evidence that the latter company runs trains over the track from Rockaway Beach to this station. Whether or not the train in question was in charge of the defendant ought to be capable of easy proof. '

Judgment and order must be reversed, and new trial granted, with costs to appellant to abide the event.

Clement, Ch. J., concurs.

Judgment and order reversed and new trial granted, with costs to appellant to abide the event.