#### WIGGINS v. KING et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Carbiers—Ejection op Passenger—Coupon Tickets.

Where a passenger buys an excursion ticket containing a return coupon, and the conductor of the outgoing train takes the return coupon, the railroad company is not liable because the conductor of the returning train refuses to accept the other part of the ticket, and ejects the passenger, if the passenger, before entering the returning train, could, by using ordinary diligence, have discovered the mistake of the other conductor.

Appeal from circuit court, New York county.

Action by Edwin K. Wiggins, an infant, against John King and John G-. McCullough, as receivers of the New York, Lake Erie & Western Railroad Company, to recover damages for an assault in ejecting plaintiff from defendants’ train. From a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial, defendants appeal.

Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

F. B.' Jennings, for appellants.

S. Ashton, for respondent.

VAN BRUNT, P. J.

It is to be noticed, in the consideration of the case at bar, that the respondent prefixes to his points a long statement of facts, without a single reference to the testimony contained in the" case supporting such statement, except one at the end thereof, which is entirely immaterial to the questions involved in this appeal. We might very well, under the requirements of the general rules of practice, refuse to consider any portion of such a statement, the more particularly as the same contains allegations of fact which we cannot find to be supported by any testimony. The facts of the case seem to be that the father of the plaintiff on the 10th of September, 1894, purchased at Jersey City an excursion ticket from Jersey City to Warren Point, the return coupon being for transportation from Warren Point to Jersey City. The plaintiff claims that in going from Warren Point to Jersey City the conductor took up the main coupon, entitling him to ride from Jersey City to Warren Point. The next day, on his return journey, another conductor refused to accept the return coupon, reading from Warren Point to Jersey City, upon the ground that it did not entitle the plaintiff to ride in the opposite direction, and he was required to leave the train. This action was brought for an assault, in putting the plaintiff off the train; he claiming to have been compelled to walk a considerable distance to his home, and to have become sick because thereof. A recovery having been had in *769favor of the plaintiff, and an order having been entered denying the motion for a new trial, from such judgment and order this appeal is taken.

In the plaintiff’s statement of the case, it is alleged that the plaintiff did not discover the fact that the conductor of the train from Warren Point to Jersey City had taken the wrong part of the ticket until he became and was a passenger on the defendant’s train on his return from Jersey City to Warren Point, upon the presentation of this ticket to the conductor, which the conductor refused to receive. We have examined the case with care, to find any evidence whatever to support this proposition. It is needless to cite authorities for the proposition that a railroad company has the right to make reasonable regulations in respect to the method by which a passenger may assert to the employés of the company his right to be a passenger upon any particular train. The possession and exhibition, upon reasonable demand, of a ticket assuring this right, has been held to be such a reasonable regulation. It is also equally clear that.the plaintiff cannot recover in this action for the wrongful act of the conductor upon the train from Warren Point to Jersey City in taking up the wrong portion of the ticket. It is equally well settled that unless the plaintiff, in ignorance of the mistake of the previous conductor, which mistake he could not by using ordinary diligence have discovered, entered upon the train going from Jersey City to Warren Point, his erroneous ticket presented no bar to the right of the conductor to eject. In the case of Muckle v. Railway Co., 79 Hun, 32, 37, 29 N. Y. Supp. 732, the right of recovery was based upon the fact that the holder of the transfer ticket could not understand the marks upon the ticket, showing the limitation of time within which it could be used. In the case of Hibbard v. Railroad, 15 N. Y. 455, which is referred to with approval in the case of Townsend v. Railroad Co., 56 N. Y. 295, the rule is laid down, in a case where a party claimed that his ticket was taken up by a conductor on a previous train before he had completed the journey which the ticket entitled him to ride, that—

> “For the wrongful act in taking his ticket he has a complete remedy against the company. The conductor of the train upon which he was, was not bound to take his word that he had had a ticket "showing his right to a passage to Khinebeck, which had been taken up by the conductor of the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to enforce the regulation, as was rightly held by the trial judge, by putting the plaintiff off, in case he persistently refused to pay fare."

It would seem, therefore, under the condition of the proof at the termination of the trial of the case at bar, that no case was made out, as against the defendant, and the complaint should have been dismissed.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.