#### Charles Rothstein, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

December *30,*1908.

Carrier — breach of contract to carry safely—jurisdiction of Municipal Court — erroneous charge.

Where one not a passenger is ejected from a surface car the action is for assault and the Municipal Court of the city of New York has no jurisdiction. But said court has jurisdiction if the person ejected was a passenger and bases his action on the breach of contract for safe carriage.

In an action in the Municipal Court founded on a breach of contract for safe carriage it is error to.charge that even if the jury find the plaintiff was a trespasser the defendant’s servant could not have used violence but merely reasonable force when ejecting him. This, because under the instruction a verdict could be based upon assault and battery rather than upon the breach of contract.

G-ayror, *J.,*dissented, with memorandum.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 18th day of May, 1908.

*Francis R. Stoddard, Jr.,*for the appellant.

*Charles Liebling,*for the respondent.

Hooker, J.:

The complaint alleges a breach of contract, in that while plaintiff was a passenger upon defendant’s street car, the defendant disregarded its obligation to carry plaintiff safely, when its conductor, without warrant, struck him in the face and otherwise maltreated him and kicked him off the car. If the judgment was for the cause of action named in the complaint, based on the fact that the plaintiff was a passenger, the Municipal Court had jurisdiction to render it. If the plaintiff was not a passenger, however, then the cause of action was for assault and battery, ánd of this the Municipal Court had no jurisdiction. (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, snbd. 14, as amd. by Laws of 1905, chap. 513.) To sustain the judgment in this case it must appear that the plaintiff was a passenger. If he was not a passenger he was a trespasser, and if a tres*528passer, the action was for assault, of which the trial court had no jurisdiction. If the plaintiff was a trespasser he could not have been a passenger and hence there could have been no contract of carriage. *(Miller*v. *Brooklyn Heights R. R. Co.,*127 App. Div. 197.)

The trial court, however, erred in permitting the jury to predicate a verdict upon the theory that excessive violence was employed by the conductor in ejecting the plaintiff as a trespasser. During the course of its charge the following statement was made to the jury: “How, the paramount question that appeals to you for your consideration is, *even if you reach the conclusion that the plaintiff was a trespasser,*based upon the testimony as you heard it, what amount of care was used here by the conductor, if you believe the testimony of the plaintiff *\*In other words, did the conductor use reasonable force, or did he use violence ? ” Counsel for defendant excepted to this portion of the charge and then requested the court to charge that the jury, before they could find a contract of carriage, must find that the plaintiff tendered himself as a passenger, that the defendant accepted him as such. The court said : “I so charge you, and I reiterate what 1 said on the questions as to trespass: *If you find that he was a trespasser, even then*it was the duty of the conductor to use reasonable force but not violence, and that you are the sole judges of the facts as to whether he, the conductor, did use reasonable force, and not violence, as you heard the testimony here, if you believe the plaintiff.” This was wrong; the plaintiff could not be a passenger and a trespasser at the same time. The jury were permitted to find by this charge that he was a tres passer, and if they so found, their verdict was based upon an assault and battery, and not upon a breach of contract. *(Miller*v. *Brooklyn Heights R. R. Co., supra.)*

For this error the judgment must be reversed and a new trial ordered, costs to abide the event.

Woodward, Rich and Miller, JJ., concurred; Gaynor, J., read for affirmance.

Gaynor, J. (dissenting):

I think the action is for a battery, in which ease the court had no jurisdiction. There is a contract, to be sure, to use lawful care to *529carry safely, but a wilful battery is not negligence, and is outside of the contract; as though a landlord should enter and batter his tenant. The lease bound him not to disturb the tenant’s quiet enjoyment, but the battery was primarily a battery, nevertheless, and not a breach of contract. This case is not like the case of a passenger being battered by another passenger, or by a third person, and the employees of the company suffering it. That would be a breach of contract; but here the battery was by the defendant.

Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.