Gasper v. New York City Railway Co.

There is a difference in the record be- ' fore us, in this case, which, in our judgment, makes a distinction from that of the case of Erma Gasper v. New York City Railway Co., anie, p. 39, and calls for the reversal of this' judgment. In the Erma Gasper case, the request of the passenger was clearly made for a transfer “ south,” along Amsterdam avenue, and we have decided that this was refused. In the case under consideration, the proof is that the plaintiff asked for a transfer to Amsterdam avenue and she received same. As this action is for the recovery of a penalty, based upon the refusal to obey the mandate of a statute, we feel that judgment should be sustained only upon strict proof of the violation thereof and, upon this record, we do not believe the necessary refusal has been established.

Present: Gildersleeve, Leventritt, and McCall, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.