Demby v. New York City Railway Co.

PER CURIAM. This action to recover a penalty for refusing to accept a transfer was tried before the decisions of the Appellate Division in Nicholson v. N. Y. City Ry. Co., 118 App. Div. 858, 103 N. Y. Supp. 695, and Kelly v. Same, 119 App. Div. 223, 104 N. Y. Supp. 561. The plaintiff obtained judgment, and the defendant appeals. The testimony herein is of such a character that we think the interests of justice require a new trial should be had, illumined by the law as declared by the opinions handed down in the cases above cited. Other grounds urged by the appellant are worthy of discussion, but need not be now considered, in view of the conclusion reached. The judgment should be reversed, and a new trial ordered, with costs to abide the event.