This case has been tried upon the theory approved by the Appellate Division on the second appeal. (Miller v. King, 21 App. Div. 192.) Unfortunately, however, an error has been committed in the exclusion of evidence offered by the defendants upon the question of damages which compels us to reverse the judgment.. It will be remembered that the contract of the defendant was to furnish the plaintiff with railroad transportation from Middletown to Sparrow-bush, whereas they left him at Port Jervis, a place some three miles distant from his destination. The defendants called as a'witness a lively stable man, resident in Port Jervis, whose business included the conveyance of persons from Port Jervis to Sparrowbush, This .witness was asked what was the regular charge for the transportation of a passenger between these two places, and an objection to the question was sustained by the court, to which ruling an exception was duly taken. The defendants^ were thus prevented from giving evidence which was plainly d'esigned to .show that the plaintiff could have procured a vehicle to take him from Port Jervis to Sparrow bush at an expense which -was trifling compared to the amount demanded in his complaint. We think the defendants were entitled to prove this fact. It may be that it would not have reduced the verdict, but, on the other hand, if the jury had been informed that transportation could readily have been obtained at an expense of a few. dollars, it may be that the verdict would have been very much. less than the amount to which it was reduced by the learned trial judge.
For this error the judgment and order appealed from must be reversed, and a new trial granted, costs to abide the event.
All concurred, except Goodrich, P. J., who read for affirmance.