13 Misc. 215

Moses Maas, Respondent, v. Louis Scharbach et al., Appellants.

(New York Common Pleas—General Term.

June, 1895.)

A steamship passage ticket is but a-token, furnishing evidence of a right to demand transportation, and, in the absence of an agreement therefor, need not be returned as a condition precedent to the recovery of the passage money under an agreement to refund the same if the ticket was not used during a limited time.

, Appeal from a judgment of the Fifth Judicial District Court, rendered in favor of the plaintiff.

Action for money had and -received.

A\ II. BerricJc, for appellant.

Jacob Levy, for respondent.

Bischoff, J.

This case presents nothing more than a well-defined issue of fact, determined by the justice in plaintiff’s favor upon sufficient evidence; hence, under the established rule governing appeals from the District Courts, there is no ground for our disturbing the judgment.

Whether plaintiff’s agreement with the defendant was that the sum in suit, paid by the former to the latter upon the purchase of a steamship passage ticket from Hamburg to Hew York, should be refunded if the ticket were not used by the intending passenger within a year, or whether a return of the ticket was essential, was the only point in issue, and the plaintiff’s evidence sufficiently supported the finding that the purchase money was to be refunded under the agreement between the parties should the individual to whom the ticket was sent fail to make use of it and obtain a passage to the port of Hew York within one year.

*216It is not contradicted that a year had elapsed when plaintiff made his final demand for "the money, and that the ticket had never been availed of.

The appellant urges that plaintiff should not be allowed to recover back the purchase price without a return of the thing sold, but this contention assumes the ticket itself to have been the subject of the sale, whereas the ticket was but a token,' furnishing the evidence of a right to demand transportation (25 Am. & Eng. Ency. of Law, 1074, 1075, and cases cited), and from the plaintiff’s evidence it is logically inferable that this token was of no value after the lapse of one year from the sale.

We have but to affirm the judgment. Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment affirmed, with costs.

Maas v. Scharbach
13 Misc. 215

Case Details

Maas v. Scharbach
Decision Date
Jun 1, 1895

13 Misc. 215

New York



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