Patrick Sullivan, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Patrick Sullivan, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second Department, October 18, 1907. Railroads — refusal'to give transfer—judgment affirmed. In an action to recover the penalty for the refusal of a transfer, judgment based on a finding that the plaintiff had properly demanded the transfer affirmed. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 28th day of March, 1907. The action was brought because of the failure of the defendant to give a transfer. At the time of giving a transfer to the conductor the plaintiff ■ held out his hand for another transfer. The conductor said something, which was not understood by plaintiff, and passed on through the. car. When the conductor came back through the car, the plaintiff orally demanded a transfer and called attention to the first effort to secure one but was refused. The defense was that there was a notice in the car requiring passengers to demand transfers,at the time of paying the fare. A. M. Williams, for the appellant. Henry Morris Haviland, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: This case as finally submitted to' the trial court presented a question of fact as to whether or not the passenger by adequate word or sign requested a transfer from the conductor at the time lie paid his fare. This question was decided in- favor of the plaintiff. I am of opinion that the decision upon the facts was justified by the evidence. This being so, the question of law presented in behalf of the appellant as to the reasonableness of the rule requiring the request fpiy.fhe transfer to be made at the time of paying the fare^ is not •involved in this-case. . The judgment of' the" Municipal Court should, -therefore, be affirmed,, with costs. . - ■ , Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.