This action is brought to recover damages for an alleged unlawful ejection of the plaintiff from a passenger car of the defendants, at Farmington, about 24 miles east of Bochester. The defendants operate two tracks between Syracuse and Bochester, one running by way of Palmyra, the most direct route, the other passing through Auburn, Geneva and Canandaigua, and traversing a longer distance than the Palmyra route. The defendants, by reason of the greater distance, charge, as they lawfully may, a greater sum for passenger fare over the route by way of Auburn, &c., than over that by way of Palmyra, and upon the face of the tickets, issued to passengers, specify the route for which the passenger has paid, and by which he is entitled to travel.
The plaintiff purchased a ticket at Syracuse, for Bochester, which on the face of it contained the words, " via Palmyra.” It is not claimed that he paid for the ticket any more than the regular fare from Syracuse to Bochester by the way of Palmyra. The plaintiff knew of the two routes, and had traveled over each of them, and knew that the one by way of Auburn &c. was the longest route. There was a train bound for Bochester, by the Auburn route, standing in front of the ticket office, when the plaintiff purchased his ticket, and he got on board this train without, so far as appears, any inquiry, or any fault or neglect on the part of the defendants or any of their servants. This train started immediately, and in a few minutes after starting, the conductor called upon thé plaintiff to exhibit his ticket. The distance and fare to Farmington by the Auburn route was the same as to Bochester *596by the Palmyra route, and the conductors on the Auburn route were acting under written instructions to collect forty-five cents additional fare from persons holding tickets for passage between Syracuse and Eochester, unless the tickets contained the words “ via Auburn;”
The company were entitled to charge forty-five cents fare between Farmington and Eochester. When the plaintiff exhibited his ticket, a few minutes after leaving Syracuse, he was informed by the conductor that he was on the wrong train; that the ticket entitled him to a seat to Eochester, by way of Palmyra, and that he could not go to Eochester on that train unless he paid forty-five cents more; and that the ticket would take him to Farmington, and no farther. The plaintiff did not ask to be let off the cars, but declared that he had paid for a ticket to Eochester, and expected to go through on that train, and would not pay any more. The conductor thereupon marked the plaintiff’s ticket with his punch and returned it to him, passing on through the cars. Farmington is the next station west of Canandaigua, and immediately after the train left Canandaigua the conductor again called upon the plaintiff and asked him if he was going to pay the additional forty-five cents, and, being answered in the negative, told the plaintiff* he must get off at Farmington, the next station. On arriving at Farmington, the conductor told the plaintiff to leave the train. The plaintiff .refused, saying he had paid to Eochester, and was going to Eochester on that train and ticket; and thereupon the conductor removed the plaintiff" from the car, using no unnecessary force.
The conductors are instructed to put those off* the train, who, holding a ticket like that of the plaintiff, and traveling by the Auburn route, refuse to pay the additional forty-five cents.
The referee reported in favor of the plaintiff, upon the ground that it was the duty of the conductor not to have *597punched the plaintiff’s ticket, but to have expelled mm from the cars upon the discovery that his ticket was by the other route, and his stating that he should not pay the additional forty-five cents. We think this erroneous. The plaintiff was duly apprised of all the facts, and that his ticket would only carry him to Farmington, as soon as the conductor discovered that the ticket was by the other route. Undoubtedly the plaintiff should have been afforded the opportunity of leaving the cars at that time, or at all events at the next station, had he so desired; but, on the contrary, he, knowing all the facts and the regulation by which he would be required to pay forty-five cents ad- ‘ ditional for the additional distance by that route to Rochester, and that his ticket would carry him only to Farmington, and being bound to know that the regulation was a lawful one, persisted in remaining on that train. Surely he cannot complain that he was not expelled from the z cars at that time. The conductor owed no duty to the plaintiff to eject him, at any time. According to the lawful regulation or custom of the company, he was entitled to travel on that ticket as far as Farmington, and it is doubtful whether the conductor would even have been * justified in expelling him from the cars before they arrived at Farmington, upon the ground that the plaintiff’ declared he would not pay the further sum required for his fare from Farmington to Rochester, which would not become payable until be should have exhausted the privileges conferred by the ticket he held, and seek to travel beyond Farmington. Doubtless the conductor concluded that the statement of the plaintiff that he should not pay the additional forty-five cents payable if he went from Farmington to Rochester, was the result of a momentary irritation, and that upon further reflection he would conform to the regulation of the company. At all events, we think the conductor was under no obligation to the plaintiff to- eject him from the cars at any time before he should *598arrive at the destination to which he was entitled to travel on his ticket, so long as he persisted in remaining on the train.
[Fourth Department, General Term, at Syracuse, November 13, 1871.The plaintiff having taken this train through his own fault or inattention, his voluntary continuance upon it after being fully notified of the consequences, must be deemed an election on his part to abide by the regulation, since it was one lawful and proper to be made and to enforce.
The judgment must be reversed, and a new trial ordered ; costs to abide the event.
Mullin, P. J., and Johnson and Talcott, Justices.]