Wesley A. Bartlett, Appellant, v. Raymond Cook, Respondent

Wesley A. Bartlett, Appellant, v. Raymond Cook, Respondent. Fourth Department, November 14, 1906. Bailment — action against bailee of mileage book taken up by railroad — bailor entitled to recover value thereof. One holding a mileage book issued in the name of another and which is subject to forfeiture if used bjr any person except the original purchaser, has nevertheless a property right therein, and may recover the value of the book from one who purchased a temporary use thereof and fails to return it, even, though the book was taken up by the railroad under the provision for forfeiture. Appeal by the plaintiff, Wesley A. Bartlett, from a judgment of the County Court of Steuben county in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 21th day of April, 1905,'reversing a judgment in favor of the plaintiff rendered by a justice of the peace of the town of Addison on the 1st day of December, 1901. •" James O. Sebring, for the appellant. . Delmar M. Darrin, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: The appeal in this case was argued with the appeal in the case of Cook v. Bartlett (115 App, Div. 829),'and we need only supplement the facts set forth in the opinion in that case by stating that subsequent to the termination of the criminal prosecution by the plaintiff against the defendant, an action was begun in Justice’s Court by the plaintiff against the defendant to recover the value of the mileage book, and the trial resulted in a verdict for the plaintiff against the defendant for the value thereof, thirteen dollars and two cents, and judgment was entered by the justice upon the verdict for the sum of thirteen dollars and two cents damages and five dollars costs. An appeal was taken by the defendant from the judgment to the County Court of Steuben county, where the judgment was reversed upon the ground that the plaintiff Was not the owner of the mileage book a,nd acquired .no title or interest therein, and, therefore, that the action was not maintainable. We have reached a different conclusion. We have fully set forth our views upon the question in the other case, and it is unnecessary to reiterate them. If we are right, it follows that the judgment of the County Court cannot he sustained. The judgment of the County Court should be reversed and that of the Justice’s Court should be affirmed, with costs in this court' and in the County Court. All concurred; Nash, J., not sitting. ■ Judgment of County Court reversed and that of Justice’s Court affirmed,- with costs in this and the County Court.