On April 3, 1906, plaintiff was a passenger on one of defendant’s cars. At the time of paying the fare of himself and one Lipman Kuku he requested the conductor to give him two transfers. This request was several times repeated. Instead of giving the transfers the conductor ■ assaulted both the plaintiff and Kuku; and, in the language of plaintiff, “ he punched me off the platform and Lipman Kuku went down.” The conductor, not content with the assault, caused both to be arrested and taken to the station house. After -plaintiff proved his case, not alone by his evi*499clence, but by the evidence of an eye-witness to the assault, a motion was made to dismiss the complaint upon the ground “ that the plaintiff has not made out facts sufficient to constitute a cause of action.” The motion was granted and the complaint dismissed upon the merits. The dismissal was unwarranted, and, upon the established facts, plaintiff was entitled to recover. A more flagrant violation of a duty owed by a carrier to a passenger could hardly be conceived. Ho attempt was made to contradict the evidence offered. The assault, according to plaintiff’s story, was an aggravated one, followed by his arrest; and, upon what theory it was determined that for the indignities inflicted upon him, the defendant could not be held, does not appear. In Busch v. Interborough R. T. Co., 187 N. Y. 388, 392, the court, quoting from Thompson on Hegligence, said: “A carrier is liable absolutely as an insurer for the protection of a passenger against assaults and insults at the hands of his own servants, because he contracts to carry the passenger safely and to give him decent treatment en route. Hence, an unlawful assault or an insult to a passenger by his servant is a violation of his contract by the only person whom he has employed to carry it out;’’ and in that case it was ruled that the Municipal Court had jurisdiction of such an action. While the complaint is silent as to the assault, the proof is clear on the subject; and it was competent to show both the assault and arrest under the allegations of the complaint. If the complaint was dismissed because in the court’s view the arrest and malicious prosecution alone were made the issuable fact, it was within its power to have ordered an amendment to conform to the proof so as to promote substantial justice. The dismissal of the complaint cannot be sustained.
Present: Gildersleeve, Leventritt and Erlanger, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.