Lebron v. New York City Transit Auth.

44 N.Y.2d 782 (1978)

Margaret R. Lebron, Appellant, v. New York City Transit Authority, Respondent.

Court of Appeals of the State of New York.

Argued March 30, 1978.

Decided April 27, 1978.

Martin Schulman and W. Harvey Mayer for appellant.

John A. Murray, Alphonse E. D'Ambrose and Helen R. Cassidy for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

*783MEMORANDUM.

The order of the Appellate Division should be reversed, with costs to abide the event, and the case remitted to Supreme Court for a new trial.

The trial court charged the jury without exception that the provision in the free pass, on which plaintiff was riding at the time of the accident, exempting defendant from liability would be binding on plaintiff if she had received the pass as a gratuity, but not binding if it had been received by her as part of her compensation. The burden on this issue rested on defendant. We find no evidence in the record that the pass had been issued as a gratuity indeed defendant's counsel admitted as much on trial and the documentary evidence considered by the Appellate Division dehors the record is inconclusive. Accordingly, the verdict for defendant is not supportable on the ground that the defense predicated on the pass had been established.

Inasmuch as it cannot be concluded, then, that the general verdict of the jury in favor of defendant was not based on this ground, the verdict must be vacated and a new trial ordered.

Order reversed, etc.