This action was brought to recover a penalty under the provisions of sections 39, 101 and 104 of the Railroad Law (L. 1890, chap. 565), for an alleged refusal by the defendant to issue to the plaintiff a transfer over various of its street railway lines in the borough of Manhattan, on April 26, 1906. The answer was a general denial.
The action was tried before k jury and at the trial, after he had delivered his main charge, the justice was requested by the defendant’s counsel to charge as follows: “ I ask *569your honor to charge the jury that in a penal action of this kind the laws of evidence require that the plaintiff prove his ease, not by a preponderance of evidence as in an ordinary negligence case, but beyoud a doubt, as in a penal case;” and the court said, “ I so charge, beyond a reasonable doubt,” to which the plaintiff’s counsel noted an exception.
It ought hardly be necessary to cite any authorities to show that such instruction is erroneous. The decisions in the recent cases of Kurz v. Doerr, 180 N. Y. 88; Wood v. Wyeth, 106 App. Div. 21, settle the rule conclusively that in a civil case the plaintiff rests only under the burden of proving his case by a preponderance of evidence, and not beyond a reasonable doubt.
Gildebslbeve and Erlahger, JT., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.