In our opinion there should be a trial of this case in which the issues presented by the pleadings and proofs should be determined. The complaint presents two causes of action, one for the penalty provided for refusal to give a transfer under subdivision 7' of section 49 of the Public Service Commission Law (as amd. by Laws of 1921, chap. 134), the second to recover damages for defendant’s breach of contract of safe carriage, evidenced by its having ejected plaintiff from its trolley car.
The respondent now urges, though we can find no reference thereto in the record of the trial below, that as the two trolley lines involved are owned by the same corporation, the case is not covered by the statute referred to. As this point was not raised or suggested below, and there is no proof and the pleadings are not clear on that subject, it cannot now be passed on by us.
The learned judge in his charge, both before and after the jury returned for further instructions, referred a number of times to the defendant’s “ barn.” Where this “ barn ” was situated, and what relation it has to the case does not appear from the evidence. The exception to the charge presents reversible error.
Finally, as to the second cause of action, the court declined to charge that “ if plaintiff tendered his fare and requested a transfer that is sufficient ” (to give him the rights of a passenger) “if he was entitled to the transfer.” This manifestly correct request was refused.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Guy, Bijur and Mullan, JJ.