I dissent. I think that the damages are excessive. The offending of the defendant was a refusal to carry the plaintiff for a five-cent fare-when the defendant thought it could charge legally a ten-cent fare. Its attitude, as I understand it, was taken on its belief of right, and was neither defiant nor contemptuous. The. plaintiff intended by his refusal to make “a test case,” and the defendant responded to his invitation by refusal to accept the five cents, and, upon the plaintiff’s counter refusal to pay ten cents, by expulsion in a manner which the plaintiff admitted was perfunctory and polite. ' There is no proof of any personal injury or any consequent pecuniary loss. The plaintiff did lose a few moments and was not allowed in one instance to Complete his journey. The actual damages were almost negligible. And there was nothing in the act of the defendant which justified the award of smart, money in any su«h substantial sum as is represented by the verdict in this case.
Judgment and order of the County Court of Westchester county affirmed, with costs.