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that the car, to stop to take those people aboard, would have to pass so that its front would be at the middle of Avenue J. It was very light at the time. It seems to me manifest that much the greater weight of the evidence indicated that the plaintiff was guilty of contributory negligence in attempting to turn his slow-moving vehicle, almost as long as a car, across that track without merely glancing to his left to see where the approaching car was, when only a little while before he had actually seen the car approaching at high speed, a distance of some 300 feet away; he having meanwhile slowly passed over at least 40-feet.

I think that he should not, under those circumstances, have attempted to cross the tracks ahead of the car, without taking any pains at all to make sure that it would not be upon him, and that the fact that he saw people standing at the near crossing of Avenue J did not warrant him in neglecting that precaution, upon the assumption that the car would stop to take them on. Those people might just as well, in the exercise of due care, have been pausing to allow the car to pass, just as he should have done, or even to allow the auto truck to pass. This case in this respect differs from the case of Power v. New York Central & Hudson River Railroad Co., 160 App. Div. 899, 144 N. Y. Supp. 1140, where this court unanimously affirmed a judgment for the plaintiff. That was the case of an accident at the Bronxville crossing, where two girls were killed. One of them was a stranger to the locality and knew nothing of the custom of the defendant to stop that train west of the foot crossing; while the other was a resident there, and knew well that custom. As to the former case this court held that the decedent, the stranger, was not entitled to cross without making sure that the train did stop before reaching the crossing. See Biggers v. New York Central & H. R. R. R. Co., 157 App. Div. 245, 141 N. Y. Supp. 827. In the case as to the other girl, upon proof that she knew that custom, the trial justice submitted to the jury as a question of fact for them to decide, whether it was negligent for her to attempt to cross without looking to see that the north-bound train, which she had seen at some distance approaching, actually stopped in its accustomed place, and, as above stated, this court affirmed that view of the matter.

The instant case seems to me rather to fall within the class or the doctrine of the Biggers Case. The respondent's brief cites and relies upon the cases of Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428, and Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. (N. S.) 487, two cases which are much cited to us these days. The Knapp Case held distinctly that it was error to charge that plaintiff was not bound in law to look at all. The opinion said:

"If. for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again." 216 N. Y. at page 230, 110 N. E. at page 429.

The test thus made is if "the way seems clear." The point here is the way should not have seemed clear to plaintiff when he looked and saw the car approaching behind him at high speed. In the Baker

(182 N.Y.S.)

Case the plaintiff testified that she did not see the auto at all when she looked (137 App. Div. 530, 121 N. Y. Supp. 1079), while in the instant case the plaintiff testified that he did see the car approaching at high speed. If the defendant at the trial had taken and maintained the stand that plaintiff's contributory negligence was established as a matter of law, I would advise that we hold that, and therefore dismiss the complaint; but, as above remarked, defendant's trial counsel took the position merely that that was a question of fact to be submitted to the jury, at least in the first instance.

I advise, therefore, that the judgment appealed from be reversed, and a new trial granted, with costs to abide the event. All concur.

(191 App. Div. 761)

SACCOMANNO et al. v. GRASSE RIVER R. CORPORATION et al. (Supreme Court, Appellate Division, Third Department. May 14, 1920.) Master and servant 403-Award for death of railroad employee not disturbed, in view of presumptions.

Where a railroad section foreman was killed by a car belonging to his employer, while standing on a side track in a lumber yard waiting for his men to arrive, so that he could direct them to work on an extension of the road, and no connection of deceased with interstate commerce was shown, an award of compensation under the Workmen's Compensation Law will not be disturbed, in view of section 21 thereof, relating to presumptions.

Cochrane and Henry T. Kellogg, JJ., dissenting.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by Rose Saccomanno to recover for the death of Frank Saccomanno, opposed by the Grasse River Railroad Corporation, employer, and the Lumber Mutual Casualty Company, insurance carrier. From an award by the State Industrial Commission in favor of claimant the employer and insurance carrier appeal. Award sustained.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

D. Theodore Kelly, of New York City, for appellants.

Charles D. Newton, Atty. Gen., and Bernard L. Shientag, of New York City (E. C. Aiken, Asst. Atty. Gen., of counsel), for State Industrial Commission.

KILEY, J. Frank Saccomanno, section foreman, in the employ of the appellant Grasse River Railroad Corporation, was instantly killed on October 22, 1918, at about 6:45 a. m. The conditions and circumstances under which he met his death are briefly as follows: On the night of October 21, 1918, Saccomanno told his men under him that they would work in the lumber yard. On the morning of the 22d he left his home at 6:30 a. m. for his work. His day commenced at 7 a. m. At 6:45 he arrived at appellant's yard at his place.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Ilexes

of work, and was standing on a side track waiting for the men to arrive. As they came to where he was, he told them that he did not have any ties and was not going to work in the lumber yard that day, but that they should get their lunch before they left for work, and that they would go back to Silver Lake. A car came along at that junction, without warning, struck the foreman and killed him. It appears that the work planned for the 22d of October, the day of the accident, "was repairing ties under rails, for an extension of about two miles from a point known as Cranbury Lake." The place to which the men were directed to return, because of absence of ties, was the "Silver Lake branch," and that is where they were at work the day before the accident. The dependents of the deceased, claimants here, were awarded compensation. The employer and insurance carrier appeal, and ask that the award be set aside ar 1 claim dismissed, upon the ground that the decedent was engaged in interstate commerce at the time he met his death. If decedent was engaged in interstate commerce, his dependents would have a claim under the federal law. If engaged in intrastate commerce, they are right in the tribunal which they have selected for relief.

Some confusion arises here, because the Silver Lake branch, where the deceased was on his way to work, or at least the place for which he was about to start, is not identified as the "extension of about two miles from a point known as Cranbury Lake," which is the terminal of the road. The work to be done, with reference to that extension, "was repairing ties under the rails," not upon a road then existing; so that it can reasonably be inferred that the work intended before the order was countermanded was new construction. It appears that the employer is engaged in interstate and intrastate commerce. The evidence does not show that the deceased had any connection with interstate commerce, except such as can be inferred from his position as section foreman. The work which he started to do on the morning in question, viz. in the lumber yard, would not usually be such work as his men would be called upon to do, unless it was to load and carry away the ties. It does not appear for what the Silver Lake branch was used; neither does the record show its connection with the main line. It would seem that under section 21 of the Workmen's Compensation Law (Consol. Laws, c. 67) as to presumptions, we cannot disturb this award. In the matter of the claim of Guiseppe Malandrino v. Southern New York Power & Railway Corporation, 190 App. Div. 780, 180 N. Y. Supp. 735, decided at March, 1920, term, a similar question was before this court; the award was sustained. Shanks v. D., L. & W. R. Co., 214 N. Y. 413, 108 N. E. 644, Ann. Cas. 1916E, 467, Fish v. Rutland Railroad Co., 189 App. Div. 352, 178 N. Y. Supp. 439, and Matter of Plass v. C. N. E. Ry. Co., 226 N. Y. 449, 123 N. E. 852, are against the appellant.

The award should be sustained. All concur, except COCHRANE and HENRY T. KELLOGG, JJ., who dissent.

(182 N.Y.S.) (191 App. Div. 719)

ESTES v. CURTISS AEROPLANE & MOTOR CORPORATION. (Supreme Court, Appellate Division, Fourth Department. May 5, 1920.) 1. Sales 72 (5)—Buyer cannot require inspection contrary to contract. Where the parties agreed that lumber sold by plaintiff should not be inspected by government inspectors, and after plaintiff entered on per formance of the contract defendant insisted on governmental inspection, plaintiff was not bound to proceed, and defendant cannot defeat an action for damages on the ground that, if the lumber equaled specifications, it was immaterial who inspected it.

2. Sales 98, 371-Where buyer violated contract by insisting on inspection, seller could rescind, and recover damages, without manufacturing goods; "anticipatory breach."

Defendant buyer's insisting on inspection contrary to the contract was an "anticipatory breach," which, under Personal Property Law, § 146, entitled plaintiff seller to rescind the sale contract and recover damages for its breach, without first manufacturing and tendering the goods. 3. Sales 72 (5)—Provision for inspection does not require governmental inspection.

A provision, in a written memorandum confirming a contract to purchase lumber, that inspection should be by the buyer, does not warrant the buyer in demanding governmental inspection.

Appeal from Trial Term, Allegheny County.

Action by George L. Estes against the Curtiss Aeroplane & Motor Corporation. From a judgment for defendant, dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Merchant, Waite & Waite, of Binghamton (Lawrence O. Waite, of Binghamton, of counsel), for appellant.

Kent, Cummings & Means, of Buffalo (Ralph C. Taylor, of Buffalo, of counsel), for respondent.

KRUSE, P. J. The plaintiff manufactures lumber. The defendant was constructing aeroplanes for the government and needed lumber. The plaintiff had manufactured and furnished lumber to the defendant for this purpose before entering into the contract in suit. The inspection had been made by a government inspector, which the plaintiff regarded as rigid, unreasonable, and unjust, resulting in serious financial loss to him, as he claimed. The defendant desired more lumber, but the plaintiff complained of the inspection, and refused to furnish any more subject to government inspection. The defendant's representative assured the plaintiff that no such inspection would be required, and stated, in substance, that the inspection would be liberal, and that a certain inspector, naming him, in defendant's employ, would do the inspection. Plaintiff said he was satisfied, and would accept this man's inspection. Thereupon they entered into a contract by which, at a certain price, plaintiff agreed to manufacture and deliver a certain quantity of ash lumber, of special cut and sizes, at least 25 per cent. of which should be suitable for aeroplanes.

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182 NEW YORK SUPPLEMENT

(Sup. Ct. The plaintiff at once started the work of manufacturing the lumber. After plaintiff had entered upon the work, a confirmation in writing was sent by the defendant to the plaintiff, stating the quantity, price, and kind of lumber to be manufactured, and adding the words "subject to our inspection," but did not specifically name the inspector who .had been agreed upon as inspector. About two weeks thereafter, while the plaintiff was engaged in the work of manufacturing the lumber, but before any had been inspected or delivered, the defendant wrote to the plaintiff to note that the white ash would be subject to inspection by a government representative at the point of shipment. Within a few days thereafter the plaintiff talked over the telephone with defendant's representative, calling his attention to this letter and to the fact that the inspection was different from what had been agreed upon, and thereafter refused to proceed with the performance of the contract, and brought this action to recover damages for a breach of the contract, claiming that the defendant had repudiated the same by insisting upon government inspection.

At the close of the plaintiff's case the defendant moved for a nonsuit, which was granted. The nonsuit seems to have been granted upon the ground that the plaintiff had failed to establish any damages. by the breach; it not appearing that the lumber would not have passed government inspection, or that such inspection would result in less than 25 per cent. being accepted for aeroplane stock, the trial judge stating in that connection that he was unable to see any possible injury to the plaintiff, if at least 25 per cent. of the output was suitable for aeroplane stock.

[1] I am of the opinion that the plaintiff made out a case. If the parties agreed upon a method of inspection, and the person to do the inspecting, that agreement was binding upon both parties, and the plaintiff was not required to proceed with the performance of the contract in the face of the claim which the defendant made that the lumber was to be subject to government inspection. That was the very thing against which the plaintiff contracted, and I think it is no answer to say that, if the lumber in fact came up to the requirements, it was immaterial who inspected it. In Dustan v. McAndrew, 44 N. Y. 75, which involved the sale of hops to be inspected by one Brown, or some other inspector satisfactory to both parties, it was held that neither party had the right to demand another inspector, unless Brown neglected or refused to inspect. The question was fully discussed there, and no further discussion is needed here. See, also, 35 Cyc. 227; Camden Iron Works v. City of New York, 104 App. Div. 272, 93 N. Y. Supp. 754.

[2] It was not necessary that the plaintiff should manufacture and tender the lumber to the defendant in order to maintain the action. When the defendant repudiated a material provision of the contract, there was an anticipatory breach, and the plaintiff could rescind the contract and recover his damages for a breach thereof. Property Law (Consol. Laws, c. 41) § 146; Hadfield v. Colter, 188 Personal App. Div. 563, 177 N. Y. Supp. 382; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120, 116 N. E. 789; Wester v.

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