#### Albert W. Elliot by Guardian, Resp’t, *v.*The New York Central and Hudson River Railroad Company, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

Railroads—Special rates—Continuous passage—Right to eject passenger.

In an action to recover damages for being wrongfully ejected from a railroad train on a road leased by defendant, it appeared that plaintiff’s father purchased two tickets, January fourteenth, at the office of the company, for Rochester. The tickets were purchased at reduced rates, and were limited continuous trip tickets for train 59, leaving New York January fifteenth, with the condition that passage should begin at New York. In the evening of January fourteenth, at Weehauken, E. presented these tickets to the door keeper, and asked what train they called for. The train indicated proved not to be train 59. When the tickets were exhibited to the conductor, he ordered plaintiff and his father off at Haverstraw, for the reason that they could not be carried on that train, and told them that the tickets called for the first train coming behind the one on which he was riding. When train 59 came along, plaintiff and his father boarded it. When the tickets were shown to the conductor, he refused them, and demanded their fare, because they did not get on at New York or Weehauken, and when plaintiff’s father refused to pay, the conductor put them off. *Held,*that inasmuch as the plaintiff and his father found themselves at Haverstraw through the act, in part, of defendant’s agent, the company was bound to receive them on board the train for which their tickets called, and carry them to their destination, and having failed to do so, and having ejected them from the car, a right of action accrued.

_Appeal_ from a judgment entered upon the verdict at the Niagara circuit, and from an order denying the defendant’s motion for a new trial on a case and exceptions.

*836
      *E. M.*and *F. M. Ashley,*for resp’t; *James F. Gluck,*for app’lt.

Macomber, J.

This action was brought to recover damages sustained by the plaintiff:, by reason of being wrongfully ejected from a railway car while traveling as a passenger from New York to Rochester, on a special ticket, on the West Shore railroad, of which the defendant is the lessee.

Mr. Elliot, the plaintiff’s father, on the 14th day of January, 1887, at about three o’clock in the afternoon, purchased two tickets at the ticket office of the West Shore company, for Rochester, and in the evening proceeded by ferry boat to Weehauken, N. J., which is the eastern terminus of the railway tracks. The tickets were purchased at a reduced price, and were limited, continuous trip tickets, good for train 59, leaving New York January 15th. In the evening of January 14th, at Weehauken, Mr. Elliot presented these-tickets to the doorkeeper, and asked the latter what train these tickets called for. Pointing to a train, the doorkeeper said, “that is the train,” and ordered him to pass along. Mr. Elliot went back to get his son and his overcoat, and when he returned he was ordered again to show his tickets, which was accordingly done, and he was again directed to the train as before. The train indicated was standing near by and was boarded by the plaintiff and his father. It proved, however, not to be train 59. After the train had passed through what is known as the tunnel, the conductor called for tickets and was handed these two tickets of the plaintiff and his father.

The conductor asked Mr. Elliot how he got onto the train, and was told that he came on along with the rest of the passengers. He was asked if he showed the tickets to-the doorkeeper, and he said he did, not only once but twice. Mr. Elliot and his son were then ordered by the conductor to get off, for the reason that they could not be carried on that train. They were allowed to ride to Haverstraw, the nearest station, and being ordered off the train, they alighted. Mr. Elliot was informed before alighting that the tickets called for the first train coming behind the one upon which he was then riding. It then being early in the day of January 15th, train 59 came along and stopped at Haverstraw, when Mr. Elliot and his son, after being wakened from a sleep in the ladies’ room, boarded it. A moment after the train started, the conductor of this train appeared and called for tickets, and these tickets were shown him, and he asked, “ where did you get these tickets ?” He was informed that they were bought in New York. The conductor said, “at reduced rates, I suppose ?” The answer was, “that makes no difference to you.” Mr. Elliot was then informed that he and his son must pay their fare, or get off.

It is argued by the appellant’s counsel that Mr. Elliot must be presumed to have known that the tickets which *837he purchased were for train No. 59, and for the 15th day of January; and he cites the case of *Elmore*v. *Sands*(54 N. Y., 512) as authority therefor. It is not incumbent upon us to decide whether this proposition is correct or not. The case differs in many essentials from the one cited, in that the number of the train and the day of its starting, in the case at bar were indicated by the punch holes rather than by plain writing which any person could understand.

The doorman, Gifford, testifies: “But a man that does not know what the numbers were originally on the ticket before the ticket agent punched it, would not know from the ticket what train his ticket was for unless somebody told him, and I was put at the door, and the doorman was put at the door, for the purpose of giving that information, amongst other things.” It is not necessary for us to decide this question, for the reason that when the passengers presented themselves at Weehauken and tendered these tickets to the doorkeeper, and were pointed to this train, they were justified in getting aboard and entering upon their journey. No deceit was practiced upon the doorkeeper. On the contrary, it appears that Mr. Elliot and his son, in good faith, took their places in the car, believing that the tickets were good for their passage.

This action is not specifically for any damages for putting the plaintiff off the train at Haverstraw. If the case of *Elmore*v. *Sands (supra),*is applicable to these facts, the conductor of that train would have been justified in leaving the passengers at the first station from which they could board the train for which their tickets were designed. At all events, the conductor attempted to correct the errors which had been committed, and instructed the persons whom he thus put off to take the train at that point, which, as above stated, they accordingly did. At last they were on board train 59, which their tickets called for. They had escaped one horn of the dilemma, which the conditions of the ticket presented, but were impaled upon the other; for the tickets had the further condition that such passage on train 59 should begin at the city of New York, meaning, undoubtedly, Weehauken. Therefore, the conductor of train 59 refused to let these passengers ride on the train for which the tickets were purchased, because they did not get on at New York or Weehauken, and, accordingly, dropped them off at Stony Point, three miles from Haverstraw. Not, however, without some indignant resistance on the part of the old gentleman. When the principal managers of the railway ascertained the true situation of affairs, reparation was attempted to be made, and transportation free of further charges was given to Mr. Elliot and his boy to their destination. The jury, undoubtedly, have taken this attempted reparation into account, for they gave only fifty dollars damages, which, under the circum*838stances, is not excessive. This case involves a principle of some importance.

When train 59 came along at Haverstraw, the embarrassing predicament of these passengers had been brought about by the mutual mistake of Mr. Elliot and the doorkeeper at Weehauken. What was the duty of the railroad company under the circumstances ? The station-agents awakened the plaintiff and his father and put them aboard train 59 at that point. The conductor was bound by that act, inasmuch as they were upon the proper train, or, at least, he was bound at his peril to ascertain the facts of the case before ejecting them, because they did not board the train at Weehauken. We are not prepared to say that the condition of this ticket, that the journey should begin at New York or Weehauken, is unreasonable; but we do hold that the provision should have a reasonable application. Inasmuch, therefore, as the plaintiff and his father found themselves at Haverstraw through the act, in part, of the defendant’s agents, the company was bound to receive them on board the train which their tickets called for and to carry them to their destination. Having failed to do so, and having ejected them from the car, a right of action accrued.

The judgment should be affirmed, with costs.

All concur.