(dissenting). The material facts are undisputed. The plaintiff arrived at the depot of defendant at Oriskany on the morning of a certain day at 8:50 or 8:53 to take the 9 :01 train for Utica. From the time of plaintiff’s arrival until the departure of the train the ticket agent *291was absent from his office and no opportunity was afforded plaintiff to purchase a ticket.
The plaintiff took a seat in the train and when the conductor asked for his ticket stated to him the facts accounting for its non-production, being corroborated by two friends. The plaintiff thereupon tendered the regular fare to the point of destination, but the conductor insisted on collecting the five cents extra imposed by the statute as a penalty for failing to purchase a ticket at the station.
The plaintiff refused to pay the penalty and the conductor, against his protest and resistance, and with violence, ejected him from the train at Whitesboro, a station between Oriskany and Utica. The plaintiff thereupon brought this action against the defendant to recover damages for assault and battery.
We have thus presented a not unusual situation, arising between the coimnon carrier and its passenger, involving the single legal question, which party acted within legal right. If plaintiff failed to purchase a ticket before entering the train, opportunity having been afforded him to do so, he was liable to pay the statutory penalty of extra fare and refusing to do so, his ejection from the train was proper. - On the other hand, if the defendant, by its act, rendered it impossible for the plaintiff to procure a ticket, his ejection from the train was Avrongful and this action lies.
The argument on behalf of the defendant and appellant is, in brief, that the plaintiff should have paid the extra fare-penalty, or left the train when requested to do so by the conductor, relying in either event upon his legal remedy; that the violence and indignity visited upon the plaintiff were of his own seeking and he cannot recover damages therefor.
This is not the law. The plaintiff and defendant were each bound in the emergency to determine the character of his or its legal rights, as it frequently happens that parties drifting into a legal controversy are driven to decide this question at their peril.
Much has been said as to the good taste of plaintiff in *292resisting so slight an invasion of his legal rights as was involved in the collection of the extra fare penalty.
The matter of good taste is wholly aside from the questions presented by this appeal; courts do not sit to enforce duties of imperfect obligation.
As to the extent the rights of the person were invaded in this case was a question very properly submitted to the jury and the plaintiff received at their hands a substantial verdict.
We agree with and adopt the prevailing opinion of the learned Appellate Division.
The judgment appealed from should be affirmed, with costs to the plaintiff.
Parker, Ch. J., Haight, J. (and Cullen, J., in memorandum), concur with O’Brien, J.; Martin and Yann, JJ., concur with Bartlett, J.
Judgment reversed, etc.