Brown v. Interborough Rapid Transit Co.

Guy, J. The plaintiff brought this action “and recovered a judgment, upon a complaint setting forth in substance that, while the plaintiff was a passenger on one of the defendant’s north bound trains, he was assaulted by the employees of the defendant, the gravamen of the cause of action being a breach of contract of carriage by the defendant. The facts appearing upon the trial are substantially undisputed and are briefly as follows: On March 19, 1907, the plaintiff boarded one of the defendant’s elevated railroad trains at Eighth street and Second avenue, his destination being One Hundred and Twenty-first street station. When the train reached One < Hundred and Twenty-first street, the plaintiff was asleep; and'he remained on the train until" it reached One Hundred and Twenty-ninth street, at which station he left the train. He then crossed the street to another station in order to reach the defendant’s south bound cars, for the purpose of taking a south bound train to be carried back to his destination which he had missed while asleep. When he attempted to board the south bound train, he was stopped by one of the defendant’s employees who inquired if the plaintiff had a ticket. The plaintiff answered “ Ho, I do not need any ticket.” He persisted in his attempt to get on the south bound train without paying -any fare, the defendant’s employees in charge of the train resorted to force to prevent the plaintiff from boarding the train. It is clear that, at the time the alleged assault was committed, the relationship of carrier and passenger between the parties had ceased to exist, and the defendant was engaged in an attempt to obtain pas- . sage upon a south bound train, with the avowed intent of paying no fare. The defendant had fully performed its contract when it carried the plaintiff on its north bound train to [639] his destination and was under no obligation to furnish him a return passage free of charge. The case of Busch v. Interborough R. T. Co., 110 App. Div. 705, has no application to the case at bar. Gildersleeve and Bruce, JJ., concur. Judgment reversed, with costs, and complaint dismissed.