and 121 New York State Reporter from one of the cars owned and operated by the defendant corporation. The plaintiff boarded the car at Twenty-Third street and Second avenue, bound north. His ultimate destination was some point north of Fifty-Ninth street, on Columbus avenue. When the car reached FiftyNinth street, the plaintiff secured a transfer and boarded a car going west along that street, and he asserts that he delivered to the conductor of this car the transfer he had obtained from the Second avenue line. There was some dispute as to this, but, whatever the fact may have been, the jury have settled it in favor of the plaintiff, and we will take it as established that way. When the Fifty-Ninth street car reached Columbus avenue, the plaintiff asked for a transfer north on that line, and was refused. Some argument ensued between him and the conductor as to whether or not he had paid his fare or delivered his transfer from the Second avenue line. He remained on the car while it continued west, and was still a passenger upon it at the end of its westerly route. When the Fifty-Ninth street car was on its westward trip, and he had asked for and was refused his transfer, if he desired to stand upon his rights he should have left the car and sought the remedy the law vouchsafes for such a wrong, in the definite and requisite penalty it fixes for such a transgression. In doing what the record shows he did, riding to the end of the westerly route, he was within his rights, and to that extent they could not be gainsaid. In remaining aboard the car when it started easterly on its return trip, he was exercising a privilege no one could deny; but when a fare was demanded of him, and he refused to pay, he was transgressing, and he invited the personal encounter which resulted in his forcible expulsion, and the company is not liable for what followed. Even though he had paid his fare on this return trip, it has been determined by the court, in a case like the one at bar, that, when no physical injury resulted, the measure of damage was the 5-cent extra fare the passenger was forced to pay because of the ejectment. Moon v. Interurban St. Ry. Co. (Jan. II, 1904) 85 N. Y. Supp. 363. But in the case at bar, when the facts are so clear as to nonpayment of fare when demanded, the complaint should be dismissed. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. FREEDMAN, P. J., concurs. GIEGERICH, J., concurs in result. BERNSTEIN et al. v. E. P. LOOMIS & CO. (Supreme Court, Appellate Term. March 11, 1904.) 1. SALE BY SAMPLE-FAILUre of Goods TO CORRESPOND-RECOVERY OF PURCHASE MONEY. A buyer paid for 82 barrels of apples on the owner's salesman opening and showing him 2 of them, and representing that all were equally as good. He took away 20 barrels, and, finding all but the sample barrels worthless, refused to take any more, and sued for the money he had paid. Held, that he was entitled to recover all but the price of the sample barrels. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Jacob Bernstein and another against E. P. Loomis & Co. From a judgment in favor of plaintiffs, defendant appeals. Modified. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Lord, Day & Lord, for appellant. Julius Blumberg, for respondent. FREEDMAN, P. J. Upon ample testimony, which we must assume was believed by the trial judge, the plaintiff showed that he purchased and paid for 82 barrels of apples, defendant's salesman stating and representing that all were equally as good in size and quality as were 2 barrels which were opened and shown the plaintiffs as a sample. The plaintiffs took away 20 barrels from defendant's storage warehouse, and, finding them all absolutely worthless except the 2 sample barrels, refused to take any more, and sued and recovered a judgment for the whole amount of the purchase price paid. All of the authorities cited by the appellant in support of a reversal have reference to cases when the plaintiff has endeavored to maintain his cause of action upon an implied warranty. In the case at bar the evidence on the part of the plaintiffs shows that the salesman expressly represented that the remaining 80 barrels were like those shown. His statements therefore constituted an express warranty, and, although he denies the making of such representations, it was a question of fact, which was decided in favor of the plaintiffs upon conflicting testimony, and such finding should not be disturbed. As the judgment was for the full purchase price paid, and it is conceded that the two sample barrels were of good quality, the judgment should be reduced by the sum of $4.50. Judgment modified by reducing amount of recovery by $4.50, and, as modified, affirmed, with costs of this appeal to respondents. All concur. MCLEAN v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. March 11, 1904.) 1. STREET RAILWAYS-REFUSAL TO GIVE TRANSFER-PENALTY. Recovery of the penalty provided by Laws 1890, p. 1114, c. 565, § 104, for refusal to give a transfer to "any passenger desiring to make a continuous trip," may be had by one riding for the purpose of recovering penalties for the refusal. Appeal from Municipal Court, Borough of Manhattan. Action by John C. McLean against the Interurban Street Railway Company. From a judgment for plaintiff for $119.31, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Henry W. Goddard and William E. Weaver, for appellant. R. M. Robinson, for respondent. and 121 New York State Reporter PER CURIAM. The judgment should be affirmed, with costs, on the authority of Topham v. Interurban St. Ry. Co. (recently decided by this court) 86 N. Y. Supp. 295, and the case of Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y. 644, therein referred to. The distinction of the case last referred to made in Myers v. The Brooklyn Heights R. R. Co., 10 App. Div. 335, 41 N. Y. Supp. 798, was not brought to the attention of this court at the time of the decision of the Topham Case. In the Topham Case the plaintiff was a bona fide passenger. In the case at bar the plaintiff rode under the advice of an attorney for the purpose of recovering penalties, but paid a second fare whenever a transfer was refused. In order to have the question settled in this department whether a person riding for such a purpose can maintain an action under section 104 of the railroad act (Laws 1890, p. 1114, c. 565), and also whether more than a single penalty can be recovered in one action, the appellant should have leave to appeal to the Appellate Division. Judgment affirmed, with costs, with leave to appellant to appeal to the Appellate Division. All concur. LITZKY V. HOROWITZ et al. (Supreme Court, Appellate Term. March 11, 1904.) 1. APPEAL-CREDIBILITY OF WITNESS. A judgment depending on the credibility of witnesses will not be disturbed on appeal. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by David Litzky against Philip Horowitz and others. From a judgment for defendants, plaintiff appeals. Affirmed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. A. I. Spero, for appellant. Manheim & Manheim, for respondents. MCCALL, J. Plaintiff, claiming that he had deposited with A. Samberg & Co., his employers, the sum of $300 as security, and that, when he was discharged, Samberg & Co. gave him a postdated check, made by the defendants, for that amount, brought this suit to recover the amount of such check. He was the only witness in his own behalf. There was undisputed testimony that the defendants loaned the firm of Samberg & Co. the check, dating it ahead, and, upon ascertaining that Samberg & Co. had gone into bankruptcy, stopped payment thereon. Three witnesses on the part of the defendants testified that the plaintiff came to the defendants' place of business, and said he had been sent by Samberg & Co. to find out why payment on the check had been stopped, and that at that time he not only made no claim to ownership of the check, but said to one witness, "I have nothing to do with the case." His own testimony as to when he deposited the security was contradictory, and, although Samberg was put upon the stand, it was not shown by him that plaintiff had deposited security, nor did it appear what the security was for. The justice evidently considered the plaintiff's testimony improbable, under all the circumstances, as he had a right to do (Elwood v. Western Union Tel. Co., 45 N. Y. 554, 6 Am. Rep. 140), and his decision should not be disturbed. Judgment affirmed, with costs. All concur. (Supreme Court, Appellate Division, First Department. March 18, 1904.) 1. SEPARATION-CRUEL AND INHUMAN TREATMENT. Repeated charges by a husband, in the presence of his infant child and others, that his wife is unfaithful to him, are a sufficient cause for granting a decree of separation, under Code Civ. Proc. § 1762, naming cruel and inhuman treatment as a ground for separation. 2. SAME-ALIMONY-CONDITION. Where a wife's only ground for a decree of separation was cruel and inhuman treatment, consisting of her husband's charges that she was unfaithful, an order giving alimony pendente lite, on condition that she quit his residence, was improperly granted. 3. SAME COUNSEL'S FEES. Where a complaint showed, as a ground for separation, a husband's repeated charges that his wife was unfaithful, an order granting counsel's fees to the plaintiff was proper. Van Brunt, P. J., and McLaughlin, J., dissenting. Appeal from Special Term, New York County. Action for separation by Florence Thayer Smith against Arthur L. J. Smith. From an order granting alimony and counsel fees to plaintiff, defendant appeals. Modified. Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ. Lewis L. Delafield, for appellant. A. H. Hummel, for respondent. PATTERSON, J. This is an appeal from an order granting alimony and counsel fees to the plaintiff in "an action for a separation." The allegations of the complaint, and the statements contained in the plaintiff's affidavit upon which the motion was founded, indicate that she seeks a decree of separation upon the first and second grounds upon which such an action may be maintained, under the provisions of section 1762 of the Code of Civil Procedure, namely, cruel and inhuman treatment, and such conduct on the part of her husband towards her as may render it unsafe and improper for her to cohabit with him. It is well understood that in an action of this character the plaintiff must disclose merits, and it is sufficient to say concerning the second ground upon which the action is apparently based that the proof is overwhelming that there is no prospect of the plaintiff's 1. See Divorce, vol. 17, Cent. Dig. § 69. and 121 New York State Reporter success on that ground. With respect to the ground of cruel and inhuman treatment, no act of violence is alleged or complained of. The only thing asserted against the defendant is that he has charged his wife at various times, and in the hearing of their infant child and of various other persons, with being unfaithful to him, which he qualifiedly admits by stating that such remarks were not made in the sense that she committed adultery, but that her conversation and consortation with other men was such as to compromise both herself and himself. It has been held that the conduct of a husband impugning the chastity of his wife, especially in the presence of their children, shows "such an utter disregard of all the ordinary feelings and sentiments which should govern the conduct of a husband towards his wife that it was cruel and inhuman treatment in itself, which made it improper for her to live with a man who had proclaimed her" to be a wanton, "with no evidence whatever to sustain such charges." Lutz v. Lutz (Sup.) 9 N. Y. Supp. 859. And in Straus v. Straus, 67 Hun, 492, 22 N. Y. Supp. 567, it is said that where a husband cruelly traduces the character of his wife the court can properly protect her by a judg ment of separation. So it may be that this action can be maintained. on the first ground upon which the separation is sought, but that does not necessarily entitle the plaintiff to the order for alimony and counsel fees which was made in this case. It is provided in that order that not only counsel fees shall be paid to the plaintiff's attorneys, but the provision for alimony is made conditional upon the plaintiff's election to quit the residence of her husband; and thus the court has left it to her discretion to say whether she will continue to live with her husband during the pendency of the suit or not, and has given her a right of selection, or, in other words, to determine her own case in that regard; to stay with him if she chooses, or to leave him if she prefers to do so. It is apparent that she is now living with him or at his house, being provided for and supported by him; and according to his affidavit, which is not contradicted, within the limit of his means the provision he makes for her is liberal, and he appears to be a man of ample means. It is not shown that occasion exists for her living elsewhere than in his house, or for having any other provision made for her support than such as is already made. That much of the order, therefore, must be reversed; but, as a separation may be adjudged (doubtful as that appears to be on these papers), I think the order for counsel fee may be upheld. Therefore the order appealed from should be modified by allowing counsel fees, and striking out so much of it as provides for the payment of alimony pendente lite to the plaintiff. No costs to either party of this appeal. O'BRIEN and LAUGHLIN, JJ., concur. MCLAUGHLIN, J. I dissent. Upon the facts set out in this record, I do not think the court should have allowed counsel fee. VAN BRUNT, P. J., concurs. |