(concurring). The plaintiff alleged that on or about September 5, 1904, he was a passenger of the defendant for hire, and while such the defendant, by and through its agents, servants and employees, wrongfully, unlawfully and forcibly assaulted him. Literally, this is within the inhibition of subdivision 14 of section 1 of the Municipal Court Act, and not within the jurisdiction of that court. But in Hines v. Dry Dock, E. B. & B. R. R. Co., 75 App. Div. 391, upon an oral complaint for personal injuries, amplified by particulars to the effect that the plaintiff boarded a car of the defendant and tendered his fare, that the conductor refused to take it, and, without cause or provocation, assaulted the plaintiff, it was held that “ the cause of action was founded upon the contract between passenger and carrier, and the liability of the defendant arose from the breach thereof,” and was not within the purview of subdivision 2 of section 1364 of the Greater New.York Charter. In deference thereto and under similar pleading, I am of opinion that the judgment herein should he affirmed, without resort to further refinement of interpretation.
Judgment affirmed.