We are of the opinion that the ticket the plaintiff had did not entitle him to a ride in the defendants’ cars from Rhinebeck to Poughkeepsie, on a day subsequent to its date. The decision in Barker v. Coffin, (31 Barb. 556,) is decisive of this question. That ease also holds that such a ticket is to be regarded as the evidence of the contract the defendants made to carry the plaintiff from Bhinebeck to Poughkeepsie.
We are also of the opinion that what was said between the plaintiff and the defendants’ ticket agent at Bhinebeck, subsequent to the purchase of the ticket, as to the ticket being good at any time thereafter, did not constitute a valid contract. ■ It was not shown that the ticket agent had authoi’ity to make an oral contract varying the one indicated by the ticket; and the decision of the Maryland Court ”of Appeals, in McClure v. Philadelphia, Wilmington and Baltimore R. R. Co., (Albany Law Journal, vol. 5, p. 13,) is an authority against the right to presume that the ticket agent had such an authority. Biit we are of the opinion, if what was said between the plaintiff and the ticket agent was sufficient, so far as words were concerned, to make a contract, there was no consideration for it. Such talk was after the ticket was sold and paid for. It was nudum pactum; and there was no binding contract that made the ticket good on a day subsequent to its date, especially at a time when the fare or price of tickets had been lawfully increased.
We think no lawyer or intelligent layman would regard ■ what was said between the plaintiff and the ticket agent as amounting to a contract, or as making the ticket good without alteration, on a day subsequent to its date; or would have supposed that the ticket would be good, at a *614time after its date, when the fare, or price of tickets, had been legally raised, without having the ticket agent erase the words on the ticket,Good for this day only,” and put his name on it, so any conductor, to whom .it should be presented, would know it had been altered by the agent who sold it. And we hold it was necessary for the plaintiff to have had the ticket dgent erase those words, or indorse the ticket, “ Good for any day or time,” and put his name upon it, so that any conductor, to whom it should be presented, would know what the contract was, by looking at the ticket, to have entitled him to ride by virtue of it, at the time he attempted to use it. • If the ticket agent had done that, the plaintiff would have had the right to believe he had authority to alter the ticket, and the- alteration would have bound the defendants.
Any person, of ordinary intelligence, would know that mere talk with a railroad ticket agent; to -the effect thaf a ticket could be used, ór would be good, at a time when the face of it showed it would not be good, yid could not be used, without sbme rule or - regulation of the ráilroad company authorizing conductors to receive such a ticket subsequent to its date, would not make the ticket good for a day subsequent to its date, when the price of such a ticket had been- lawfully increased. It is probable that a statement of a ticket agent to any person that a ticket, like the one which the plaintiff had, would be good and taken at any time after its date, would be believed and would mislead the holder of it, and induce him to. attempt to use it,' and ride by virtue of it, after its date. But when he should learn from the conductor of a train of cars, on which he should attempt to ride by virtue of the ticket subsequent to its date, that it ivas not then good, he would not be justified -in refusing to pay fare, and in using force to remain on the train without paying fare.
We are of thé opinion that the plaintiff did not sustain one hundred dollars damages, and that he was not entitled *615to a-verdict for that amount. But it is unnecessary to pass upon that question.
[Third Department, General Term, at Albany, March 5, 1872.We have not overlooked the» fact that there was some evidence given which tended to show that one or two of the defendants’ conductors -had, at some time, taken tickets subsequent to their dates without objection, notwithstanding the rules and regulations of the defendants forbidding their conductors so to do. But such acts of conductors were not known to the plaintiff when he was ejected from the cars, and did not make a conductor a wrongdoer for obeying such rules and regulations, who had never violated them.
For these reasons we are of the opinion the order denying the defendants’ motion for a new trial, and the judgment entered on the. verdict, against them, should be reversed, and a new trial granted in the action; costs to abide the event.
So decided.
Miller, P. J., and Potter and Balcom, Justices.]