Upon the facts disclosed by the record it is very difficult to bring this case within that principle. All we know with respect to the duties of the agent is that he sold tickets at the station from a place behind a window in the waiting-room. It does not appear that he had any charge of the place where the plaintiff was when arrested, or that the plaintiff was, within the meaning of the decisions, in his custody, or under his protection, or that the ticket agent was intrusted by the defendant with any powers or duties with respect to the execution of contracts for the transportation of passengers. Upon the facts disclosed at the trial it would be quite difficult, if not impossible, to classify the act of the agent in pointing out the plaintiff to the police and directing his arrest as negligence or wilful misconduct. There can be no doubt that a conductor or like agent of a carrier of passengers, who has them in his charge and under his care, may violate the duty which he owes to them by directing an arrest without cause, for which his principal may be held liable, but sufficient was not shown in this case to bring it within that rule. The judgment should be reversed, and a new trial granted, costs to abide the event.

ANDREWS, PECKHAM, and GRAY, JJ., concur.

EARL, J. (dissenting).—The plaintiff purchased of the defendant's agent at East New York two tickets for himself and friend to Rockaway Beach and back over its railway, and immediately passed out of the depot building on to the platform outside, where he took a seat under an awning, upon a bench provided for passengers who were awaiting trains. By the purchase of these tickets the relation of carrier and passenger was created between him and it; its agreement, implied from the facts, being that it would, upon its first train stopping at that station, carry him to his destination. The train was soon expected, and while he was there waiting for it he was entitled to a safe place to stand or sit, and it was under obligation to him that he should not be injured by the careless or wilful misconduct of any of its employés or agents. Carpenter v. Railroad Co., 97 N. Y. 494, 21 Am. & Eng. R. Cas. 331. In that case, after the plaintiff had purchased his ticket for a passage on the defendant's road, and while he was standing on the platform at the depot, a postal clerk threw a mail-bag from the train, which struck and injured him; and DANFORTH, J., writing the opinion, said: "The plaintiff was injured before the actual commencement of his journey, but he was lawfully on the platform, because he was a passenger. And it was held that it is the duty of a railroad corporation to

provide for a passenger a safe passage to the train he desires to take, and to take reasonable care that he shall not, while on its premises, be exposed to any unnecessary danger, or to one of which it is aware; that it is bound to exercise the utmost vigilance, not only in guarding its passengers against careless interference by others, but even against violence; and if, in consequence of neglecting this duty, a passenger receives injury, which in view of all the circumstances, might have been reasonably anticipated, it is liable. No one will question that, if the plaintiff, while sitting upon the bench waiting for the train, liad been injured by the carelessness of one of the defendant's employés, it would have been liable; and it is now well settled that where a railroad company would be liable for the careless act of its employé it would also be liable for his wilful or malicious act, causing injury to a passenger whom it was bound to keep and carry safely.

In White v. Railroad Co., 20 N. Y. Wkly. Dig. 510, it was held that, if a passenger on a street railway is ejected from the car and assaulted by the driver, when the fare has been put in the box, the company is liable, and also for causing the arrest of the passenger.

In Hamel v. Ferry Co. (Sup.), 6 N. Y. Supp. 102, affirmed in this court, 125 N. Y. 707, the action was for assault and battery and false imprisonment, and it was held that the court correctly charged that, if the defendant's employé unjustifiably assaulted the plaintiff while and because plaintiff attempted to pass through a gate which the employé was in charge of, and as part of the same transaction, and assuming to act under the defendant's authority, called in a police officer, and had the plaintiff arrested, defendant was liable, and that it was immaterial whether it authorized the arrest or not.

In Stewart v. Railroad Co., 90 N. Y. 588, 12 Am. & Eng. R. Cas. 127, where the plaintiff was a passenger on one of the defendant's street-cars, and was unjustifiably assaulted and beaten by the driver, it was held in an action to recover damages therefor that it was liable; that the rule relieving a master from liability for a malicious injury inflicted by his servant, when not acting within the scope of his employment, does not apply as between a common carrier of passengers and a passenger; that such a carrier undertakes to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. In that case, Judge TRACY, writing the opinion of the court, cited many authorities, and, among other things, said: "In the present case the defendant had intrusted the execution of the

contract to the driver of the car, and the plaintiff was under his protection. Any breach of the contract committed by the driver was a breach committed by the defendant. It is conceded that any injury arising from the mere negligence of the servant constitutes a breach of the contract. Had the driver, while executing the contract, carelessly and negligently injured the plaintiff, the defendant's liability would not have been doubted. Can it be less a breach of the contract that the injury was intentionally inflicted? An act which would amount to a breach of the carrier's contract if negligently done would be equally a breach if done wilfully and maliciously. It is immaterial whether a breach of contract results from the negligence or wilfulness of the defendant's agent. It is the injury that was suffered by the plaintiff while in the defendant's car, and not the motive which induced it, that constitutes the gist of the action. No reason exists for holding a master liable for the negligence of servants in his employment which does not with equal force preclude him from alleging intentional default of the servant as an excuse for not performing a duty which he has undertaken. In the former case the negligence of the servant is that of the master, and that is the ground of the master's liability; in the latter, the act of the servant is the act of the master, the motive of the servant making no difference in regard to the legal character of the master's default in doing his duty. A rule which should make the carrier liable when the act resulting in the injury was carelessly but unintentionally done, and exonerate him when the injury was the result of the intentional act of the servant, would lead to most absurd results.

In Dwinelle v. Railroad Co., 120 N. Y. 122, 44 Am. & Eng. R. Cas. 384, it was held that a railroad company, by the sale of a ticket for passage on its road, assumes the obligation and undertakes absolutely to protect the passenger against any injury from negligence or wilful misconduct of its servants while performing its contract; and that, whatever may be the motive which incites the servant to commit an unlawful or improper act toward the passenger during the existence of the relation of carrier and passenger, the carrier is liable for the act, and its natural and legitimate consequences. In such a case, too, it has been held that it is wholly immaterial upon the question of the defendant's liability that the servants acted in good faith. Hamilton v. Railroad Co., 53 N. Y. 25.

In this case, the relation of carrier and passenger having been created by the purchase of the tickets, the plaintiff was just as much entitled to protection against the wrongful acts of the defendant's servants as if at the time of the assault him and his arrest he had been in one of its cars. upon He

was in a place where he had a right to be, and where, under the rules of law announced in the cases cited, he was entitled to protection against injury from the negligent or wilful acts of its servants. It is immaterial what the ticket agent's motive may have been. He may have been prompted by the desire to do a public service by the arrest of criminals, or by a malicious motive, simply to do the plaintiff an injury, and still, under the authorities cited, the defendant was liable for his acts. Suppose, instead of directing the police officer to arrest the plaintiff, he himself had seized and confined him in the depot, would any one then contend that the defendant would not be liable? And can it be said that that case would have been any different in principle from this? Suppose, instead of directing the police officer to arrest him, he himself had made the arrest, and dragged the plaintiff through the streets to the police station, can it be doubted that the defendant would have been liable? The law makes it liable in such cases simply because of the unlawful interference with the person of the plaintiff, a passenger, by one of its employés; and the motive of the employé is entirely immaterial upon the question of its liability. The motive may operate upon the question of damages, but cannot wholly shield the defendant against liability.

The agent not only caused the arrest, but, in violation of the duty which the defendant owed the plaintiff, growing out of the sale of the tickets, and the contract thus made to carry him to his destination, he broke the contract by rendering it impossible that the plaintiff could be carried. Instead of going upon the train, as he had the right to do under his contract, by the act of its agent he was taken to a police station, and kept under arrest for an hour or more. Can a ticket agent sell tickets to a passenger and then arrest him, or cause him to be arrested, so that he cannot take passage upon the train for which he has purchased a ticket, and the railroad company escape all responsibility for his acts? If the plaintiff had been a mere lounger in or about the defendant's depot, having no relations with it,-not a passenger,-different rules of law would apply; and it may well be that, upon the facts as they appear, it would not have been liable for the assault upon him and his arrest. Its liability to him grows out of the fact that he was a passenger, entitled to its protection. No question was made upon the trial as to the extent of the ticket agent's authority. It was there assumed that he was the agent having the charge of the depot at East New York. It does not appear that there was any other agent at that point. He is spoken of in the evidence as "the agent." The general superintendent of the defendant's road testified that

he was "the agent" of the defendant at East New York, and in the motion by the defendant's counsel for a nonsuit he was spoken of as "the agent" of the defendant. The judge in his charge to the jury spoke of him as "the ticket agent in charge of this station," and no exception whatever was taken to this remark, and no claim whatever was there made by the defendant that he was not its agent in charge of that depot.

We therefore see no reason to doubt that the judgment in favor of the plaintiff is right, and should be affirmed, with costs.

FINCH, J., concurs.

Ticket Agent Causing Arrest of Passenger.-See the case of Palmeri♥. Manhattan R. Co., post, where the New York Court of Appeals distinguishes the above case and particularly defines its application.

PALMERI

V.

MANHATTAN R. Co.

(133 New York, 261.)

Master and Servant-Torts of Servant-Ticket Agent-False Imprisonment.--A railroad company is liable for the acts of a ticket agent who, after a passenger has purchased a ticket, declares that the coin given in payment is counterfeit, publicly denounces the passenger as a counterfeiter, uses insulting language toward her, and detains her while he sends for an officer. In such case the agent acts within the scope of his employment, and the company is liable both for the false imprisonment and for the slander.

Cross-examination--Plaintiff as an Habitual Litigant.-An offer by defendant upon plaintiff's cross-examination to show that she was an habitual litigant was properly excluded.

APPEAL from supreme court, general term, second depart

ment.

Action for false imprisonment and slander.

Brainard Tolles, for appellant.

James D. Bell, for respondent.

GRAY, J.-Quite recently we had occasion to consider a case where the ticket agent of a railroad company directed the arrest, by police officers, of a person in the railroad station, whom he suspected of being a counterfeiter, The Mulligan and the company was thereafter sued for false imprisonment. In that case the facts were briefly stated that the ticket agent had been notified by the police

case.