In a negligence action to recover damages for personal injuries, it appeared that at the time of the accident plaintiff was an employee of defendant in its transportation system and was riding on one of its trolleys on a pass, issued to him by the Board of Transportation, which purported to release the city from liability for negligence, etc. The plaintiff had completed his work for the day and was on his way home. The trolley in which plaintiff was riding collided with a sanitation truck, also owned by defendant. Upon the trial defendant conceded that the accident was due to its negligence but claimed immunity from liability by virtue of the provisions of the pass. The trial court submitted to the jury, as a question of fact, whether the pass was received by the plaintiff as a mere gratuity or as a part of his contract of employment. The jury found in favor of the plaintiff, and from the judgment entered upon the verdict, defendant appeals. Judgment unanimously affirmed, with costs. The case was properly submitted to the jury as a question of fact. ( Montalbano v. New York Central R.R. Co., 267 App. Div. 617; Vroom v. New York Central H.R.R.R. Co., 129 App. Div. 858, affd. 197 N.Y. 588. )