Busch v. Interborough Rapid Transit Co.

CourtNew York Court of Appeals
Writing for the CourtHISCOCK
Citation80 N.E. 197,187 N.Y. 388
Decision Date19 February 1907
PartiesBUSCH v. INTERBOROUGH RAPID TRANSIT CO.

187 N.Y. 388
80 N.E. 197

BUSCH
v.
INTERBOROUGH RAPID TRANSIT CO.

Court of Appeals of New York.

Feb. 19, 1907.


Appeal from Supreme Court, Appellate Division, First Department.

Action by Emanuel A. Busch against the Interborough Rapid Transit Company. From a judgment of the Appellate Division (110 App. Div. 705,96 N. Y. Supp. 747), unanimously reversing an order of the Appellate Term (93 N. Y. Supp. 372), and affirming a judgment of the Municipal Court of the City of New York in favor of plaintiff, defendant appeals. Affirmed.


[187 N.Y. 388]Joseph H. Adams, for appellant.

187 N.Y. 389]Charles Goldzier, for respondent.
HISCOCK, J.

This action was brought to recover damages for defendant's failure to properly transport plaintiff over its road in the city of New York. The real, substantial element of damages is an alleged assault upon and maltreatment of plaintiff by one of defendant's employés after the former had passed through the gateway onto the platform of one of defendant's stations for the purpose of taking a train, and the sole question is whether the action is one of contract or of [187 N.Y. 390]tort. This inquiry is of controlling importance, since the Municipal Court, where the cause originated, had jurisdiction of an action of the former character, and did not have jurisdiction of one of the latter kind.

[80 N.E. 198

I think that the learned Appellate Division correctly held that the action was one in contract, and that plaintiff's judgment should be affirmed.

Naturally the first and most important step to be taken in determining this question is an examination of the complaint. The allegations of this which are important read as follows: ‘Second. That on the 7th day of January, 1905, this plaintiff became a passenger of the defendant for the purpose of being carried upon one of its cars, * * * and in consideration of the sum of five cents (5c.), duly paid by this plaintiff to the defendant, the defendant promised and agreed safely to carry this plaintiff and to treat him properly and carefully. Third. * * * That the defendant, through its agents and employés, wrongfully, illegally, and in violation of the terms of said contract, assaulted the plaintiff,’ etc. The trial proceeded under this complaint, and evidence was produced which, without recapitulating it, is assumed upon this appeal to have been in accordance with and in support of the allegations of the complaint. In the presence of a unanimous affirmance, we must assume that there was evidence to support the verdict, and, in the absence of some objection, we may presume that such evidence followed the pleadings. Therefore we have the allegations, established by proof, of a promise and agreement to do certain things, of the violation of the ‘terms of said contract,’ and of the manner in which the violation occurred. These allegations, in so far as they affect the point under consideration, are not modified or supplanted by any others; and I fail to see how a complaint could much more directly impress upon an action the character of one in contract than does the pleading before us. It certainly was possible for the defendant to make a contract ‘safely to carry this plaintiff and to treat him properly and carefully,’ and we must accept the allegation that it did so. Having [187 N.Y. 391]done this, it was possible for it to commit a ‘violation of the terms of said contract’; and this is properly alleged. And, finally, there is no room for doubt or need for authorities that all or some of the wrongful acts of defendant's servant which are alleged as constituting such violation did in fact amount to a breach of the alleged specific contract ‘to safely carry’ plaintiff and to ‘treat him properly and safely.’...

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27 practice notes
  • Niagara Mohawk Power v. Stone & Webster Eng., No. 88-CV-819.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 24 d5 Novembro d5 1989
    ...one in tort might have been and, ordinarily would be, brought for the acts really complained of." Busch v. Interborough Rapid Transit Co., 187 N.Y. 388, 391, 80 N.E. 197, 198. In Busch a passenger was permitted to sue a public carrier in contract for damages resulting from an assault on him......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals
    • 12 d4 Janeiro d4 1961
    ...contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388, 80 N.E. 197; Fish v. Delaware, L. & W. R. Co., 211 N.Y. 374, 105 N.E. 661, appeal dismissed 245 U.S. 675, 38 S.Ct. 10, 62 L.Ed. 542; Restatement, ......
  • Fire Association of Phila. v. Allis Chalmers Mfg. Co., Civ. A. No. 775.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 14 d1 Março d1 1955
    ...factually and legally. In that connection the Court of Appeals of New York, in the case of Busch v. Interborough Rapid Transit Co., 1907, 187 N.Y. 388, 80 N.E. 197, at page 198, 10 Ann. Cas. 460, stated: "The dividing line between breaches of contract and torts is often dim and uncertain." ......
  • Cohen v. Varig Airlines (S.A. Empresa de Viacao Aerea Rio Grandense)
    • United States
    • New York Supreme Court Appellate Division
    • 2 d2 Maio d2 1978
    ...N.E. 857; Hamilton v. Third Avenue R. R. Co., 53 N.Y. 25; Busch v. Interborough Rapid Transit Co., 110 App.Div. 705, 96 N.Y.S. 747, aff'd 187 N.Y. 388, 80 N.E. 197) and the innkeeper or hotelkeeper liable for the insult to his guest (cf. Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 126 ......
  • Request a trial to view additional results
27 cases
  • Niagara Mohawk Power v. Stone & Webster Eng., No. 88-CV-819.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 24 d5 Novembro d5 1989
    ...one in tort might have been and, ordinarily would be, brought for the acts really complained of." Busch v. Interborough Rapid Transit Co., 187 N.Y. 388, 391, 80 N.E. 197, 198. In Busch a passenger was permitted to sue a public carrier in contract for damages resulting from an assault on him......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals
    • 12 d4 Janeiro d4 1961
    ...contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388, 80 N.E. 197; Fish v. Delaware, L. & W. R. Co., 211 N.Y. 374, 105 N.E. 661, appeal dismissed 245 U.S. 675, 38 S.Ct. 10, 62 L.Ed. 542; Restatement, ......
  • Fire Association of Phila. v. Allis Chalmers Mfg. Co., Civ. A. No. 775.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 14 d1 Março d1 1955
    ...factually and legally. In that connection the Court of Appeals of New York, in the case of Busch v. Interborough Rapid Transit Co., 1907, 187 N.Y. 388, 80 N.E. 197, at page 198, 10 Ann. Cas. 460, stated: "The dividing line between breaches of contract and torts is often dim and uncertain." ......
  • Cohen v. Varig Airlines (S.A. Empresa de Viacao Aerea Rio Grandense)
    • United States
    • New York Supreme Court Appellate Division
    • 2 d2 Maio d2 1978
    ...N.E. 857; Hamilton v. Third Avenue R. R. Co., 53 N.Y. 25; Busch v. Interborough Rapid Transit Co., 110 App.Div. 705, 96 N.Y.S. 747, aff'd 187 N.Y. 388, 80 N.E. 197) and the innkeeper or hotelkeeper liable for the insult to his guest (cf. Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 126 ......
  • Request a trial to view additional results

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