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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. tract, and an antecedent or pre-existing debt is such value;" and in charging that “if this note was given to pay a pre-existing and past due debt, I charge that it is not a live and valid consideration between the parties.” There was, however, no evidence tending to prove that the note was given to pay the debt, that the debt was canceled or relinquished in any way, or that time for its payment was extended, and the propositions of law referred to may be regarded for the purposes of this case as mere abstractions. The plaintiff testified positively that the note of January 3, 1902, “was not given to me by Mr. Earl for money he had previously borrowed and for goods he had purchased from me and owed me for. I gave Mr. Earl money for that note.” Mr. Earl testified that he received a check from the plaintiff for the amount of the note preceding the note in suit less discount, adding: “I swear on oath before this jury that I received from Mr. Roseman $295.50 for that note dated January 30, 1902. I think I received that amount. I can't say whether any of it went for goods or not. I may not have received $295.50 from Mr. Roseman. I will not swear I did.” There was other evidence given by both the plaintiff and Earl so contradictory and confused that the jury may very well 'qve believed, especially in view of the fact that no check was produced, that the note was taken as security for a pre-existing debt, but as I have said, no one testified or suggested that the debt was given up, or that the plaintiff relinquished his right to sue upon it for a moment.

By section 51 of the Negotiable Instruments Law (Laws of 1897, chap. 612) it is provided that “an antecedent or pre-existing debt constitutes value." But the holder of the note must give up the debt either wholly or qualifiedly in order to constitute consideration. He must part with something - if not with the debt, at least with the right to sue upon it for some determinate period. The taking of the debtor's note raises no presumption that it is in payment of the debt, and there was here no circumstance or suggestion that the plaintiff extended the time for payment or did any other act which would have prevented him from surrendering the note and resorting to the original indebtedness. He tried the case on the issue solely of a money consideration given at the time of the taking of the note, without a pretense on the part of any one that it was taken in payment of a debt, and he cannot be permitted to disturb a just

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

result by predicating error upon a refusal to charge upon an issue not embraced within the evidence. (Kane v. N. Y., N. H. & H.

, R. R. Co., 132 N. Y. 160, 166.)

The judgment and order should be affirmed.
GOODRICH, P.J., BARTLETT, WOODWARD and JENKS, JJ., concurred.
Judgment and order affirmed, with coets.

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JAMES E. HORTON, Respondent, v. ERIE RAILROAD COMPANY,

Appellant.

Mileage book, tendered for the fare within the State of New York on a trip, rart of

which was in another State and was paid for by a ticket purchased for that dis. tance - - a railroad company, the successor of one having a right to fix its charges for transportation, is subject to the Mileage Book Acts.

*

*

A mileage book, issued under chapter 1027 of Laws of 1895, as amended by

chapter 577 of the Laws of 1898, by a railroad company whose road is located partly in the State of New York and partly in the State of Pennsylvania, contained the following provision: “This book is good only for transportation wholly within the State of New York and will not be accepted for a trip which passes through any portion of another State en route.

It will be accepted for transportation only for journeys wholly within the State of New York and will not be accepted for a journey which passes through any portion

of another State en route." The holder of one of such mileage books boarded a train at Lackawaxen in the

State of Pennsylvania for the purpose of making a single through trip to Cochecton in the State of New York. He tendered an ordinary ticket in pay. ment of his fare from Lackawaxen to Narrowsburg, which is in the State of New York, and, on reaching Narrowsburg, attempted to use the mileage book

in payment of bis fare from Narrowsburg to Cochecton. Held, that the passenger had acted within his rights; That the use attempted to be made of the mileage book was not prohibited by

the conditions contained therein; That the fact that the railroad company was the successor of another railroad

company, which had the general right to fix its charges for transportation, did not relieve it from the operation of the statute under which the mileage book was issued.

APPEAL by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 12th day of

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. June, 1902, upon the verdict of a jury for $300, and also from an order entered in said clerk's office on the 7th day of July, 1902, denying the defendant's motion for a new trial made upon the minutes.

Henry Bacon (Joseph Merritt with him on the brief], for the appellant.

Frank Lybolt, for the respondent.

HIRSCHBERG, J.:

The plaintiff has recovered a judgment for damages because of a wrongful and unlawful ejection from one of the defendant's passenger trains on June 7, 1899, at Narrowsburg, in this State, in consequence of his attempting to ride from that point to Cochecton, in this State, upon one of the defendant's mileage books issued under chapter 1027 of the Laws of 1895, as amended by chapter 577 of the Laws of 1898. As the plaintiff concededly boarded the train at Lackawaxen, in the State of Pennsylvania, for the purpose of making a single through trip to Cochecton, the defendant claims that the mileage book was not good even for that part of the trip which was wholly within this State, and that, therefore, its conductor was justified in putting the plaintiff off the car when he offered only the coupons contained in the mileage book, and refused to pay his fare in cash. The plaintiff tendered an ordinary ticket in payment of his fare from Lackawaxen to Narrowsburg, so that the issue relates solely to his right to use the book between the two points named in this State, between which two points the defendant's road lies wholly within this State. The case has been here once before on appeal from a judgment dismissing the complaint by direction of the court. (Horton v. Erie Railroad Co., 65 AppDiv. 587.)

The plaintiff claimed upon this, the second trial, that in consequence of the refusal of the conductor to accept the mileage book, which refusal was made known to him shortly after leaving Lackawaxen, he changed his mind about continuing the journey to Cochecton, and decided to get off the train at Narrowsburg to transact some business with a customer living there who chanced to be on the train, and perhaps to stay all night with him. He

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

further stated that he did get off the train at Narrowsburg with his baggage, and had some conversation with his customer during the ten minutes the train lay there, afterwards changing his mind again about his destination that night and deciding to go to Cochecton from there as a new and independent journey. The case was submitted to the jury under instructions to find in the plaintiff's favor only upon an adoption by them of this story of the severance of the journey as having been established in absolute good faith. When the plaintiff boarded the train at Narrowsburg he again offered the mileage book to the conductor. The conductor refused to accept it, and the following ensued according to the plaintiff's evidence, viz.: "I asked him if Narrowsburg was in the State of New York. He said, “It is. And I asked if Cochecton was in the State of New York and he said, “It is.' I asked why it was not good from Narrowsburg to Cochecton and he said, 'You boarded the train at Lackawaxen. Will you pay the cash fare?' and I said,

No, sir.' He said, “Will you get off the train ?' and I said, 'No, sir.' He then said, 'I will have to put you off.' And I said if there was any getting off the train to be done he would have to put me off. I refused to pay the cash fare. He laid his hands on me, took me by the arm and led me off.”

It is noticeable that the plaintiff does not claim that he informed the conductor of his alleged change of purpose as to the continuity of his journey, although the conductor was the official in charge of the train from the commencement of the trip at Lackawaxen.

. Under these circumstances the learned coursel for the appellant claim that the plaintiff's statement that he did in good faith terminate his journey at Narrowsburg and commence a new one is so far refuted by the other testimony in the case as to leave not even a scintilla of evidence in its favor and, consequently, to leave the judgment wholly unsupported.

In the view taken of the contract embodied in the mileage book it seems unnecessary to examine that question, for it seems clear to me that the plaintiff was entitled to use the book in payment of his fare from Narrowsburg to Cochecton on a continuous and unbroken journey from Lackawaxen to the latter point. The language of the contract, so far as material, is as follows: “ This book is good only for transportation wholly within the State of New York and will

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. not be accepted for a trip which passes through any portion of another State en route.

It will be accepted for transportation only for journeys wholly within the State of New York and will not be accepted for a journey which passes through any portion of another State en route.” The plain assurance of these two sentences is that the book is good for transportation within the State, and that it will be accepted for such transportation, the only qualification being that it will not be accepted for “a trip” or for “a journey” (that is, on the face of the contract, an entire trip or an entire journey) which passes through any portion of another State. The object of the condition is manifest. The defendant operates lines which traverse several States and the use of the book was to be limited to the State whose legislation had called it into being. The limitation was a necessary precaution distinctly informing passengers that the book could not be used out of the State or for any portion of a trip out of the State, but the appellant endeavors to incorporate into the contract the idea that the limitation is designed to prevent its use even in the State for any part of a trip, a part of which passes through any portion of another State. In this view the words which I have italicized will have to be read into the contract to support the appellants contention. Such contention was clearly expressed on the trial in the defendant's motion to dismiss the complaint at the close of the plaintiff's case, the counsel then saying: “We say this clearly was a trip which he intended to take from Lackawaxen to Cochecton, Pennsylvania to New York, and that he couldn't use that ticket for that trip or any part of it.That he (meaning the plaintiff) couldn't use that ticket (meaning the book) for that trip is expressed in the contract, but that he couldn't use it for any part of that trip is not therein expressed at all; but on the contrary, is repugnant to the assurance that the book is good and will be accepted for transportation in the State of New York, which assurance is only qualified by the statement that if the journey is partly in the State of New York and partly out of it, the book will not be accepted for that journey. In short, the effect of adopting the defendant's contention would be to make the contract read that the book would not only not be accepted for a trip which passes through any portion of another State, but would also not be accepted for any portion of such trip, not even for that portion of it which

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