The opinion
Jenks, J.:
The plaintiff’s ease is that he hoarded a car of the defendant and offered a transfer ticket for his fare ; that the conductor rejected it as not good; that plaintiff insisted to the contrary; that the conductor declined to argue the question of validity, but ordered him to leave the car, and that the conductor then assaulted him. The plaintiff’s theory of action is a breach of contract of carriage. Before he-can rely upon a breach of contract he must establish the contract. He failed to do so. He did not produce the transfer ticket or give secondary evidence of its character or of its validity for the use that he attempted to make of it. The conductor- was not bound to accept a transfer ticket because the plaintiff thought it was good. If the conductor refused carriage' for a valid transfer ticket, then there would have been a breach of the contract. When the transfer was refused, the plaintiff should have paid his fare or should have left the car, for if the conductor was wrong the passenger would have had his remedy against the defendant. He could not enforce liis contract by force. Until the plaintiff proved that the defendant was obligated to carry him for the transfer ticket which he tendered, liis action is for battery, in that excessive force was used to eject him from a car which he had refused to leave upon the demand of the defendant, and which refusal was followed by resistance to expulsion. But the Municipal Court has not jurisdiction of actions for assault or battery. (Miller v. Brooklyn Heights R. R. Co., 127 App. Div. 197 .)
The judgment is reversed and a new trial is ordered, costs to abide the event.
Hirschberg, P. J., Woodward, Thomas and Carr, JJ., concurred.
Judgment,of the Municipal Court reversed and new trial ordered, costs to abide the event.