#### WILLIAM TOWNSEND, Respondent, *v.*NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

*Passenger—liability of company for wrongful act of conductor in collecting tickets.*

The plaintiff, having purchased a ticket from Sing Sing to Bhinebeck, entered a train from Héw York at Sing Sing, which stopped at Poughkeepsie, where passengers going farther north were accustomed to take the next train. Just before coming to Poughkeepsie, the conductor of the train took up plaintiff’s ticket. Plaintiff having entered the next train going north at Poughkeepsie, the conductor of that train, shortly after leaving that place, demanded his ticket, and, upon his refusal to pay the fare, ejected him from the train, although informed by the plaintiff and other passengers that the other conductor had taken his ticket. In an action brought by the plaintiff to recover damages for such expulsion, *held,*that he was entitled to recover.

Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

The plaintiff purchased a railroad ticket at Sing Sing for Rhine-beck. With this ticket in his possession, he went on a train from New York at Sing Sing. This train went no farther than Poughkeepsie. It was customary for passengers who were going farther north, to take another train at Poughkeepsie. After the train on which the plaintiff was had passed Peekskill, the conductor called for tickets, and took up and retained the ticket of the plaintiff.

Upon the arrival of the train at Poughkeepsie, as the train went no farther, the plaintiff got out and waited for some twenty-five minutes until another train came along, which was going north. He got into this train. The conductor of this train asked him for his ticket. The plaintiff told the conductor that he had purchased a ticket at Sing Sing for Rhinebeck, and that the other conductor had taken it up. Some of the passengers told the conductor that the plaintiff had such a ticket. The conductor told the plaintiff that he must pay the fare. The plaintiff refused to do so, and was, for this reason, put off the car at Staatsburgh. No unnecessary *218force was used. The plaintiff sued to recover damages. He recovered at the Circuit, and the defendant appeals.

F. Loomis, for the appellant.

*Samuel Hand,*for the respondent.

Learned, P. J.:

As the acts of the conductors in the scope of their duty are the acts of the defendants, the case stands thus : The defendants contracted with the plaintiff to take him from Sing Sing to Rhinebeck. They gave him a ticket which he was to show in the cars, when requested, and to surrender to them on demand. After he had traveled for some distance, they required him to surrender his ticket, and he did so. Then they requested him to show it, and as he could not do this they put him off the cars.

If the train, on which the plaintiff started, had gone through to Rhinebeck, there would probably be no question made of the defendants’ liability. No one would claim that a conductor can take up a passenger’s ticket, and then put him off the cars for his inability to show his ticket, without rendering the company liable. What difference can it make that the plaintiff was obliged by the defendants to get upon another train in order to complete his journey ? The defendants urge, that, as he had no ticket when he got on the train at Poughkeepsie, he was to blame for thus attempting to continue on his way to Rhinebeck. But he had no notice that he needed a ticket any longer. The company had taken up that which he had. He might naturally have supposed that no further call would be made on him. If he had stayed at Poughkeepsie, without attempting to go farther north, that would have been his fault or negligence;■ and he would have had no complaint against the company. If he had bought another ticket at Poughkeepsie, and had then sued the company for the extra sum paid, what cause of action would he have had. They would have justly said: We never refused to carry you to Rhinebeck. Taking up your ticket was no refusal. We always take up tickets at some point before the end of the journey.

To require a passenger to show a ticket may be reasonable; *219but a company cannot require a passenger to comply with a regulation, compliance with which they have themselves prevented. Nor can it be said that the act of the conductor, in taking up the ticket, was wrongful toward the passenger. The company might take up their tickets wherever they chose, ***
      **but they could not, by so doing, acquire the right to refuse to transport the passenger.

No question arises here whether it would have been proper for the plaintiff to attempt to force his way into the car at Poughkeepsie, without a ticket, if his entrance had been objected to on that ground. He went, into this car without objection, and in accordance with the custom of those travelers on the Poughkeepsie train who were going farther north. *“*It follows,” as was said by the Court of Appeals, *“*that if the plaintiff was entitled to a passage on the car in question, without the payment of any additional fare, his ejection therefrom was unlawful, †That case seems to be closely analogous to the present. In the case of *Weaver*v. Rome, *etc., R. R.,*
      *‡*
      **the plaintiff was negligent. Paying for three tickets, he neglected to obtain more than two. And he was therefore at fault; like a passenger who loses his ticket. There was no injustice, therefore, in making him bear, so far as his right to travel went, the consequences of his carelessness. But in the present case, the plaintiff was not to blame. He yielded to the demand of the defendants, a demand which they had the right to make, it would seem, when he first entered the car at Sing Sing. §

The decision of this case in the Court of Appeals, || held that exemplary damages were not proper. And the charge of the judge at the Circuit on this trial, limited the jury to damages in compensation.

The judgment should be affirmed.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed.

Northern R. R. Co. v. Page, 22 Barb., 130 ; Vedder v. Fellows, 20 N. Y., 126.

Hamilton v. Third Av. R. R. Co., 53 N. Y., 25.

**3 N. Y. S. C., 270.

Northern R. R. Co. v. Page, *ut supra.*

56 N. Y., 295.