Barney v. Oyster Bay & Huntington Steamboat Co.

I think the justice at circuit erred in not nonsuiting the plaihtiff. There was but a single cause of action for "which plaintiff asked damages, and that was for a refusal to carry plaintiff on the 37th of October, and subsequently, “so long as he (plaintiff) transacted the business he was engaged in, to wit: His express business.” The evidence of the plaintiff clearly shows, that his claim was to travel as an expressman on the defendant’s boat. This he had no right to do. Barney v. Steamboat D. R. Martin, opinion by Judge Hunt, 8 Alb. Law Jour. 54.

The plaintiff in his complaint does not complain that he was refused as a passenger.

He does not claim it as a witness upon the trial. If he did, the evidence is overwhelming that such is not the fact. If it was right to send the case to the jury, their verdict was against the evidence.

Judgment reversed, and new trial granted, costs to abide event.

Judgment accordingly.