SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29. were rightly construed by the learned judge before whom the case was tried. The language of the ticket does not connect the ride. below Sixty-fifth street with the ride above that street. Besides, the plaintiff offered the ticket on a 'continuous ride.' He did not leave the car after he entered it, until he was put off by the defendant's servant. The ticket entitled the plaintiff to a ride upon any passenger car run by the defendant. It contained no notice of any restriction or limitation of the right which it purported to give. * * * The ticket, prima facie, was evidence of the plaintiff's right to that ride,' and the conductor had no right to demand fare, and to refuse the ticket when it was tendered him." This case was decided before the passage of the statute under which the action at bar is brought, and has no bearing except as to the question of a continuous trip, and upon the proposition asserted with greater clearness, perhaps, in the case of Dunphy v. Erie Railway Co. (42 N. Y. Super. Ct. 128) that: "The rights of the plaintiff rested upon the contract that was made when he bought the ticket. The benefits he gained as to times and trains and the journey were then settled and fixed, and the limitations of his rights were then settled and fixed." The rights of the plaintiff in this action were fixed when he bought his ticket; when he paid his fare. By the laws of this State he became possessed of the right to have a transfer ticket given to him which should entitle" such passenger to one continuous trip" from the point of transfer to his destination, and no regulation of the company fixing an arbitrary time could defeat this right. If the company was prepared to furnish suitable cars, with sufficient room so that the passengers could be given seats, there would be no doubt of the plaintiff's duty to take the first car which came along after he left the other car; that would be necessary as an element of good faith on his part in desiring to take a continuous trip, but it is not the law of this State that a street railway company, operating under the law as amended in 1892, can compel its passengers to crowd into overcrowded cars, or to stand in the aisles, in order to receive the benefits of the law. "The duty to receive persons as passengers upon a tender of the fare," says Angell on the Law of Carriers (528), "if there be sufficient room, involves the obligation that he shall not be overcrowded, after he has paid his fare and taken his

App. Div.]

SECOND DEPARTMENT, APRIL TERM, 1898.

seat, and be thereby, as it were, expelled. The contract must be fairly performed." As was said by this court in the case of Ianna v. Nassau Electric R. R. Co. (18 App. Div. 137): "A transferred passenger has not necessarily the right to board the first car that approaches on the line, regardless of whether there is accommodation for him. * * * * His duty was to wait till a car approached in proper condition to receive him. If none came, he could maintain his action against the company for breach of the contract to carry him. But he could not force himself into a dangerous or improper position upon the car against the action and remonstrances of the defendant." This being good law for the corporation, it is equally good for the plaintiff, and it fully sustains his contention that he was lawfully upon the car of the defendant, and that he was entitled to have the jury pass upon the subsequent transaction.

The transfer ticket, which was given to the plaintiff, and which put an arbitrary limit upon the time, did not modify the original contract entered into at the time of paying the fare; nor did the plaintiff, in accepting it, waive any rights which he had under the original contract. As was said in the case of Lechowitzer v. The Hamburg-American Packet Co. (59 N. Y. St. Repr. 486): "The paper relied on as limiting defendant's liability was not given to him when and where he paid for his passage, but days afterward when he was already at sea on the steamer and powerless to repudiate the pretended contract. When a party has no freedom to reject a proposed stipulation, because then unable to reinstate himself an inference of his assent to the stipulation would be simply preposterous. His proceeding on the voyage and suffering his baggage to remain with the carriers were compulsory, and can, therefore, imply no assent to terms of transportation then for the first time communicated to him." The plaintiff could not change the contract; he was bound to accept the transfer ticket tendered, or none at all, and he cannot, therefore, be deemed to have given any assent to the condition imposed, which limited the right guaranteed by the

statute.

*

*

*

It does not seem to be necessary to go into the consideration of the other points involved in this action to any great length, but as the case must be retried, it may not be out of place to say that in our opinion the trial court was not justified in excluding the evi

SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29. dence as to the arrest, transportation in a patrol wagon and subsequent discharge of the plaintiff. If the arrest was made upon the order of the conductor, and constituted a part of the act of ejectment, it was proper that the jury should be allowed to pass upon the facts, and to have the evidence before them in estimating the damages which the plaintiff may have suffered by reason of such act. (Palmeri v. Manhattan R. Co., 133 N. Y. 261; Lynch v. Metropolitan El. R. Co., 90 id. 77.)

The motion for a new trial is granted, costs to abide the event. All concurred.

Exceptions sustained and new trial granted, costs to abide the

event.

W. SCOTT JOHNSON, Appellant, v. THE CITY OF POUGHKEEPSIE,

Respondent.

Negligence of a municipality — damages resulting from being thrown from a bicycle by a collision with a pile of mortar in a street — proof of notice to a city officer.

In an action brought against a city to recover damages for injuries sustained by the plaintiff in being thrown from a bicycle while riding at night upon a city street, by reason of an obstruction thereon, consisting of a pile of mortar, which had been upon the street for some weeks, the trial court held that " there was no actual notice to the board of works at any time. The heap of mortar over which the plaintiff fell was no larger, and possibly no smaller than the same was usually kept. It was not a large heap, being about two feet in height and about three feet at its base. Therefore, it does not show negligence upon the part of the city. There was nothing illegal or improper upon the part of the mason in putting the material upon the street in moderate quantities for completing the work and for removal of old material. This was done not so fast but that at times there was a pile on the street awaiting to be taken away. This ought to have been guarded by a light, but the act of the mason in leaving this heap unguarded on the night in question was not sufficient to charge the city with any act of negligence whatever."

On the trial the plaintiff offered to show that notice that this pile of mortar had been on the street for a period of from four to six weeks had been given to an officer of the city, but such evidence was excluded by the court.

Held, that such exclusion was error;

That the plaintiff had a right to show that the city, through any of its officers charged with police powers or the superintendence of the street, had notice of the condition of the street.

App. Div.]

SECOND DEPARTMENT, APRIL TERM, 1898.

APPEAL by the plaintiff, W. Scott Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 31st day of January, 1898, upon the decision of the court rendered after a trial at the Dutchess County Special Term dismissing the complaint, with costs, and granting the defendant an additional allowance of five per cent, and also from an order entered in said clerk's office on the 31st day of January, 1898, denying the plaintiff's motion for a new trial made upon the minutes.

J. Morschauser [Wm. II. Wood with him on the brief], for the appellant.

J. L. Williams, for the respondent.

WOODWARD, J.:

The plaintiff in this action was thrown from a bicycle and injured while riding along Catherine street in the city of Poughkeepsie, on the night of the 30th of August, 1897, the accident being caused, it is alleged, by an obstruction consisting of a pile of mortar which had been in the street for some weeks. The trial court finds all of the facts necessary to constitute a cause of action, except that it holds that "there was no actual notice to the board of works at any time. The heap of mortar over which the plaintiff fell was no larger, and possibly no smaller than the same was usually kept. It was not a large heap, being about two feet in height and about three feet at its base: Therefore, it does not show negligence upon the part of the city. There was nothing illegal or improper upon the part of the mason in putting the material upon the street in moderate quantities for completing the work and for removal of old material. This was done not so fast but that at times there was a pile on the street awaiting to be taken away. This ought to have been guarded by a light, but the act of the mason in leaving this heap unguarded on the night in question was not sufficient to charge the city with any act of negligence whatever." (Citing Breil v. City of Buffalo, 144 N. Y. 163.)

As was said by ANDREWS, Ch. J., in the case of Farley v. The Mayor, etc. (152 N. Y. 222): “This is not like the case of Breil v. APP. DIV.-VOL. XXIX.

3

SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29.

City of Buffalo (144 N. Y. 165) where the only possible fault charged against the city was that it failed to remove or guard a pile of earth left in the street on a single night by the owner of adjacent property engaged in filling in his lot, of which the city had no actual notice, and no constructive notice, unless the fact that the lot owner was engaged in filling in his lot with earth deposited in the street in the daytime, and which on each day, except in the one instance, was removed during the daytime, made the city liable for an injury caused by the obstruction. If the pile of earth had been suffered to remain in the street for weeks, and the city had remained inactive, a different question would have been presented." The evidence is overwhelming, and indeed is not contradicted, that this pile of mortar (and it was on the pile of mortar, and not on the debris from the house where the accident occurred) had been in the street for a period of from four to six weeks, and there was an effort on the part of the plaintiff to show that notice of this fact had been given to an officer of the city, but the trial court rigidly excluded all evidence tending to show the fact of such notice and did not allow the witness to tell the relation to the city of an individual whose name was mentioned in the testimony. This was, in our opinion, error. The plaintiff had a right to show that the city, through any of its officers charged with police powers or the superintendence of the streets, had notice of the condition of the street. "It was not the case of an isolated trespass," to use again the language of the court in the case of Farley v. The Mayor, etc. (supra), "which a public officer might reasonably suppose would not be repeated, but a continuous invasion of the public right, habitually indulged in and known to the public officials. They had just reason to believe that the practice would be continued unless the city authorities interfered to stop it, and what the policemen knew the city is chargeable with knowing after the lapse of a reasonable time to enable information to be communicated by them to their superiors." Under this rule it was clearly competent for the plaintiff to show that the attention of a police officer had been called to the condition of the street.

"A person using a public street," says BROWN, J., delivering the opinion of the court in the case of Pettengill v. City of Yonkers (116 N. Y. 558), "has no reason to apprehend danger, and is not