Misc.] Appellate Term, First Department, February, 1918. The foreman in charge of the trench work for the Empire Company testified that from the time of completion of his work, on May twenty-seventh, until the trench was turned over to the defendant on June second, it was his duty to, and he did, examine the trench every day to see whether the fill was "going down." It is in evidence that the scene of the accident, at the corner of Ludlow and Stanton streets, is a very busy and crowded place, where accidents frequently occur because of the crowds and consequent confusion. It seems to me that the mere statement of this evidence shows that the case was for the jury, unless it is to be said that when holes are dug in our crowded city streets, for no matter how useful a purpose, the digger may, while his concrete is settling, or for any reason of his own, throw in a covering of loose earth that is obviously a menace alike to pedestrians and vehicular traffic. Even if the defendant could exonerate itself by showing that it had tamped the earth down, and made it as hard and solid as dirt ordinarily can be made by packing, the question would be for the jury in view of the testimony presented for the plaintiff that the earth was loose; but no such proof was offered, and the jury was amply warranted in finding that the earth was loosely thrown in, was untamped, and created a condition of danger. Nor do I see any room here for the application of the doctrine that refuses relief to a pedestrian who ignores obvious defects in the highway. This was no such obvious defect, for surely, I think, one may assume in crossing our asphalted city streets that a dirt portion of the roadway that is on a level with the asphalt is packed down, hard, solid, and safe to walk upon. The plaintiff testified that she was unfamiliar with the neighborhood. While the decisions upon the subject of street defects are none too clear, for the reason, perhaps, that because of the Appellate Term, First Department, February, 1918. [Vol. 102. infinite variety of highway obstructions and dangers each case must rest largely upon its own facts, it cannot, I think, be denied that private creators of street dangers are held to a stricter accountability than is a municipal body. It would be an intolerable burden to municipalities to be held answerable in damages for slight defects in the many miles of highways under their care (Terry v. Village of Perry, 199 N. Y. 79; Butler v. Village of Oxford, 186 id. 444), but there is no such reason for exculpating persons who, in a private capacity, have created dangerous conditions in the course of street work they are engaged in, and this without regard to the purpose of the work or the amount of benefit the general public may probably or necessarily derive from it. Even in an action against a municipality, a distinction is drawn in favor of the defendant in the case of a defect from ordinary wear, as against a defect caused by the use of temporary expedients. See Butler v. Village of Oxford, supra. The defective condition in the case at bar was clearly of a temporary character. For the reasons stated I vote to affirm. Judgment reversed, with costs. PITTSBURGH ELECTRIC SPECIALTIES COMPANY, INC., Respondent, v. LOUIS ROSENBAUM, Appellant. (Supreme Court, Appellate Term, First Department, February, A judgment in favor of a foreign corporation, not authorized to do business in this state, for the purchase price of goods sold under a contract in this state, must be reversed and the complaint dismissed. Misc.] Appellate Term, First Department, February, 1918. APPEAL by defendant from a judgment of the Municipal Court of the city of New York in favor of plaintiff for $327.55 and costs. Samuel R. Wachtell, for appellant. Isaac Josephson, for respondent. FINCH, J. The action is for the purchase price of iron goods sold by the plaintiff to the defendant. There is no question about the justness of plaintiff's claim, and the dispute is as to whether plaintiff was doing business in this state, and whether the contract sued on was made in this state. Plaintiff is a Pennsylvania corporation dealing in electrical specialties. It is uncontradicted that it maintains a branch office in New York city in which is located the general sales manager of the company. The branch consisted of a loft which had plaintiff's name on signs, and also a sign "shipping department." There were six men employed in the branch, namely, two salesmen and four others, and there was carried in the branch a stock of plaintiff's merchandise from which, to some extent, orders were filled. Plaintiff maintained a bank account in New York for the benefit of the branch, bùt carried under the name of an employee. Some payments at least were made by customers at the branch office. The branch has been maintained for three or four years. There were special letter-heads for the use of the branch. Plaintiff's name was listed in the telephone book. From all these circumstances it appears that plaintiff was doing business in New York. On the question of where the contract was made, plaintiff's general sales manager, who was located in the branch in New York city, wrote defendant the Appellate Term, First Department, February, 1918. [Vol. 102. letter, Exhibit B, inclosing a form of contract which defendant was to sign. Defendant copied the form upon his own letter-head, signed it and returned it to the sales manager in the branch. From a reading of these two letters, it is apparent that the contract was made here, though there was an attempt to prove that the contract had to be approved at the home office before becoming effective. It follows that plaintiff was doing business here without having obtained a license, and therefore the judgment should be reversed, with thirty dollars costs of this appeal, and complaint dismissed, with costs in the court below. WEEKS, J., concurs. LEHMAN, J. (dissenting). It seems to me that the evidence that the plaintiff was doing business in this state was so inconclusive that the trial justice properly held that the defense was not sufficiently proven. Even if, however, we assume that the trial judge was bound to hold as a matter of law that the plaintiff was doing business in this state, I think the judgment should be reversed and a new trial ordered and the complaint should not be now dismissed. In order to make a complete defense the defendant was bound to prove not only that the plaintiff was doing business in this state but that the contract was made here. The letter signed by the defendant was addressed to the Pittsburgh Electric Specialties Company, Pittsburgh, Penn. It is in form merely an order and on its face constituted rather an offer than the acceptance of an offer. Regarded as an offer addressed to a corporation at Pittsburgh and requiring an acceptance by that corporation before it could become effective, it would show no contract made within this state. On the other Misc.] Appellate Term, First Department, February, 1918. hand, as Mr. Justice Finch points out, the letter was actually returned to the sales manager in the New York branch and was written in answer to a letter signed by that sales manager and sent from the New York office. If those letters stood alone without explanation and it was claimed by the plaintiff that they constituted together the contract, I would agree with Mr. Justice Finch that the contract was made here. The plaintiff, however, testified that he stated to the defendant that his letter must be sent to Pittsburgh for approval and I think if this testimony be true, and a letter of approval was thereafter sent from the Pittsburgh office, the contract may well be held to have been made in Pittsburgh in spite of certain statements in plaintiff's own letter from New York that immediately upon the signing of the order by the defendant the plaintiff was to deliver a small part of the goods called for by the order. It is true that even if I am right in this contention the judgment cannot be affirmed on the present record. The plaintiff claims that the defendant's order was to become effective only upon approval from the Pittsburgh office. Without such approval there would obviously be, under its theory, no contract at all. The plaintiff tried to prove the sending of a letter by the Pittsburgh office to the defendant but this letter was excluded upon technical objections made by the defendant. In the absence of proof of such approval this court cannot determine that a contract was made in Pittsburgh. Upon a new trial, however, this proof may be supplied. Judgment should therefore be affirmed or, if reversed, a new trial ordered, with costs to appellant to abide the event. Judgment reversed, with costs. |