2. Municipal corporations 821 (18)-Whether defendant restaurant keeper properly guarded its sidewalk elevator from being operated by strangers held for jury.

In action for injuries from stepping upon closed door of defendant restaurant keeper's sidewalk elevator, which, without warning, was suddenly raised, causing plaintiff to fall, the cause of the raising of the door concededly being the starting of the elevator, of his own initiative, by an employé of a hotel supply company, delivering supplies, whether defendant was negligent in failing to properly guard its elevator, sc as not to permit a stranger to enter upon and operate it, and whether defendant had performed its duty in regard thereto, so as to afford reasonable protection to travelers in the highway, held for the jury.

3. Municipal corporations 809 (1) -Negligence to allow stranger to have access to sidewalk elevator and operate it negligently.

In relation to restaurant keeper's duty to the traveling public to prevent injury from the operation of its sidewalk elevator, negligence may consist as well in allowing a stranger to have access to the elevator and operate it negligently as in the negligent operation thereof by the restaurant keeper's employés.

4. Municipal corporations 809 (1) — Concurrent negligence in allowing stranger access to elevator and stranger's negligence render both liable.

Where an injury from a sidewalk elevator could not have occurred without the concurring negligence of the restaurant keeper responsible for its safety, in leaving it unguarded, so that a stranger, a driver for a hotel supply company, could have access to it and operate it, and the negligence of the driver in operating it, the negligence of each was an effective and proximate cause, rendering both liable jointly and severally for the injury naturally resulting.

5. Negligence 61 (1)—Concurrent negligence not intervening cause.

As long as the result was a reasonable probability, an act of concurrent negligence is not legally an intervening cause.

Mullan, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Celia Rosenholz against the Frank G. Shattuck Company. From a judgment for defendant, on the direction of a verdict by the court, plaintiff appeals. Reversed, and new trial ordered.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Moses A. Sachs, of New York City, for appellant.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondent.

WAGNER, J. Plaintiff sued to recover damages for personal injuries sustained by her by reason of the alleged negligence of the defendant, who conducted a restaurant at premises 20 West ThirtyEighth street, borough of Manhattan, New York City. While walking on the south side of Thirty-Eighth street and about to enter the defendant's restaurant, where she had an appointment to meet a friend, the plaintiff stepped upon a closed door covering a sidewalk elevator, which simultaneously and without warning or signal of any kind was suddenly raised, causing her to fall and be injured. This elevator was immediately in front of the defendant's show window, directly to the right of and adjoining the entrance way to the building, and ran

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.

(183 N.Y.S.)

The

from the basement of defendant's building to the sidewalk. building in its entirety was occupied by the defendant, the elevator constructed by defendant pursuant to a license from the municipal authorities, and maintained and used for the purpose of delivery of food supplies for use in the restaurant which defendant there conducted.

It is undisputed-in fact, conceded by the defendant-that the cause of the elevator door being raised was the operation thereof beneath by an employé of the Metropolitan Hotel Supply Company, who at the time was delivering certain boxes of fowl to defendant's place of business, which the latter had purchased. It appears by the testimony of this employé that when he drove up in front of the restaurant, not finding any one upon the sidewalk to receive the goods in defendant's behalf, he entered the premises and proceeded to the basement to inform defendant of the arrival of the supplies. Upon failing to discover anybody in the basement to operate the elevator in question, he started it of his own initiative, resulting in the accident above described.

[1] At the conclusion of the evidence the learned trial justice directed a verdict for the defendant, dismissing the plaintiff's complaint upon the ground that, while unquestionably the accident had happened through the raising of the elevator door, it was the unauthorized act of a third party, for which the defendant was not responsible. This view we think was erroneous. The defendant constructed, maintained, and had charge of the elevator in question. It was upon a public highway, where numbers of people at the time of the accident were passing. It was in front of the defendant's establishment, which alone was patronized by throngs each day. The license to construct merely made legal what would otherwise have been illegal and a nuisance. In obtaining such right, the defendant acquired a privilege, with its consequent duty and burden. The privilege was to construct the elevator; the duty was to maintain it properly guarded, and to afford safe and proper means for its operation. Downey v. Low, 22 App. Div. 460, 48 N. Y. Supp. 207.

[2] The evidence shows that no warning or signal, by bell or otherwise, was given to indicate that the elevator was to be raised. There was no provision made by the defendant, so far as the evidence discloses, for any of its employés to operate the same from the basement at the time the mishap occurred. The nature of the defendant's business, with its constant necessity for delivery of foodstuffs and supplies, demanded the frequent use of the elevator, and its position upon the sidewalk, frequented by throngs of passers-by, was notice that its operation was fraught with continual danger, unless properly and fully guarded and maintained. The plaintiff had full right to rely upon and assume that it was so properly operated and guarded that she could walk across its closed doors with safety in order to enter defendant's place of business, as her intention was. Under such circumstances, we think it was for the jury to decide as to whether the defendant was negligent in failing to properly maintain and guard its elevator, so as to permit a stranger to enter upon and operate it,

and whether defendant had performed its duty in regard thereto, so as to afford reasonable protection to travelers upon the highway.

[3] A similar claim of the intervention of acts of a third party was made in Haywood v. N. Y. C. & H. R. R. Co., 59 Hun, 617, 13 N. Y. Supp. 177, affirmed 128 N. Y. 596, 28 N. E. 25, where one of the gates guarding defendant's railroad tracks at a crossing had been raised by an outsider, whereby plaintiff entered and was struck by an oncoming train. The court, in affirming the judgment for plaintiff, said:

"Negligence in the management of the gates may consist as well in allowing a stranger to open them as in the negligent opening of them by the company's agent; and I think it is for the jury to say whether, upon the evidence in this case, the defendant negligently permitted the gates, which were placed there as a warning and safeguard to the public, to be opened either by its own employé or a stranger, and remain open so as to allow a traveler to pass through. The duty of operating the gates in such a manner as to afford reasonable protection to a traveler upon a highway, who is reasonably careful himself, rests with the railroad company; and when the gate is opened, and the traveler passes through upon the track and is injured, it is a question of fact for the jury to determine whether or not allowing the gate to be opened-whether opened by defendant or a strangeris negligence on the part of the company."

[4, 5] It is contended, however, that, assuming the defendant to have been negligent, its wrongful act was not the proximate cause of the accident. The answer to this proposition lies in the fact that, as the injury could not have occurred without the concurring negligence of the two parties concerned, namely, the defendant and the driver for the supply company, the negligence of each was an efficient and proximate cause, which rendered both liable jointly and severally for the natural result. As long as the result was a reasonable probability, it is well established that an act of concurrent negligence is not an intervening cause within the legal meaning of that term. If the defendant, acting in a reasonably prudent manner, should have foreseen that such an accident was likely to occur, with no one provided by it to operate and guard the elevator, there is no reason why any negligence on its part should be excused by the fact that another. was also negligent at the same time. Whether or not a public sidewalk in a crowded city was turned from a place of safety to a place of danger by the joint acts of two persons was a question, we think, that should have been submitted to the jury for its determination. Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574; Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442, 58 Am. Rep. 508; Cohen v. Mayor, etc., of N. Y., 113 N. Y. 513, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506.

Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event.

BIJUR, J., concurs.

MULLAN, J., dissents.

(112 Misc. Rep. 480)

(183 N.Y.S.)

MOSER et al. v. YORK CLOAK & SUIT CO., Inc.

(Supreme Court, Appellate Term, First Department. June 16, 1920.)

1. Contracts 39-Provision for combination not a binding contract, the minds of the parties not having met.

Where plaintiffs allowed defendant to use their factory under a contract providing that at termination defendant might offer them shares of its capital stock, with the intention of having the factory combined with its business, and if plaintiffs should desire to purchase and defendant decline to sell such shares, plaintiffs should be paid a bonus, the agreement, which contemplated further action and adverted to suitable drawing account for plaintiffs and the protection of their shares in the defendant corporation, if acquired, is unenforceable and no action for damages for the agreed bonus may be maintained.

2. Contracts 39-While contracts imply good faith, presumption cannot supply essential requisites.

While it is implied that parties to contracts will deal fairly and in good faith, such implication cannot supply essentials of the contract, so as to make binding an agreement on which the minds of the parties had not met, and which was left open to future negotiation.

Appeal from City Court of New York, Trial Term.

Action by Charles Moser and another against the York Cloak & Suit Company, Incorporated. From a judgment for plaintiffs on the verdict of a jury, defendant appeals. Modified, and, as modified, affirmed.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Max Zaliels, of New York City (Lewis F. Glaser, of New York City, of counsel), for appellant.

Reginald F. Isaacs, of New York City (Henry W. Unger, of New York City, of counsel), for respondents.

BIJUR, J. This suit is brought upon three causes of action. Upon the first, for $368, defendant conceded plaintiffs' right to recover. The second, for $632, was for defendant's breach in certain respects of at contract to be presently mentioned, as to which it is quite evident, as recognized by both parties, that the jury found in defendant's favor. It is therefore not involved in the present appeal. The third cause of action was for the sum of $1,000, sought to be recovered under the following circumstances:

On July 10, 1919, the respective parties hereto entered into a contract in which the defendant is described as the party of the first part and the plaintiffs as the party of the second part, whereunder it was recited that the defendant was engaged in the manufacture of clothing, that the plaintiffs were the owners and operators of a factory, and that the defendant employed the plaintiffs to take charge of such factory for the period from July 15 to November 15, 1919. The defendant agreed to furnish the factory with all materials necessary and to discharge all its expenses, with the intent that the defendant should become for the period named practically the owner and operator of

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the factory. For all this the defendant agreed to pay the plaintiffs $100 each per week for their services and $1 on each garment produced in the factory.

[1, 2] Other details were provided for, and then followed the clause which is the subject of the present appeal (for the purpose of clarity I have substituted the word "defendant" for "party of the first part" and plaintiffs for the "party of the second part"):

"It is further understood and agreed by and between the parties hereto, that at the end or termination of this agreement the [defendant] may offer to the [plaintiff's] certain shares of the capital stock of the York Cloak & Suit Company, Incorporated, with the intention of combining the factory herein specified and the services of the [plaintiffs] into said York Cloak & Suit Company, Incorporated, and in that event proper provision shall be made for the said [plaintiffs] for the preservation of their said shares of stock together with a reasonable drawing account. In the eyent that the [plaintiffs] shall desire to purchase said shares and the [defendant] will not agree to sell the same, then and in that event the said [defendant] will pay to the [plaintiffs] at the termination of this agreement the sum of one thousand ($1,000) dollars as a bonus for the use and occupation of the said factory of the [plaintiffs].”

The complaint alleges as a third cause of action that by the terms of this agreement "the defendant had the option to offer to plaintiffs certain shares of defendant's stock and to combine the plaintiffs' factory with the business of the defendant, making proper provision for the preservation of plaintiffs' stock, together with a reasonable drawing account," and that it was further provided that, "in the event that the plaintiffs desired to purchase and defendant would not agree to sell upon the conditions stated, defendant agreed to pay the plaintiffs one thousand ($1,000) dollars," etc.; that the defendant "failed, neglected, and refused at the end of the termination of said agreement to sell or agree to sell to said plaintiffs said stock and combine the plaintiffs' factory with defendant's business and make proper provision for the plaintiffs' stock, together with a reasonable drawing account"; that plaintiffs duly demanded of defendant the fulfillment of said conditions, and were at all times ready and willing to perform their part of the agreement, but that defendant failed to carry same out or to pay the sum of $1,000 as agreed.

In my opinion the allegations under the statement of the third cause of action fail to set forth a cause of action, and the complaint as to said cause of action should have been dismissed at the opening, had a motion been made for that relief. It was, however, made at the close of the plaintiffs' case, and of the entire case, on the express ground that the complaint "does not state facts sufficient to constitute a cause of action, and particularly on the ground no price is mentioned, and no criterion of value by which the value of the stock can be appraised." It is evident to my mind that the clause of the agreement which I have quoted was not even intended to bind the defendant to do anything, and the complaint recognizes that situation by alleging in terms that the defendant had "the option" to make the offer therein provided for. It requires no argument to demonstrate that the defendant could not be mulcted in damages for failure to exercise an option. The payment of $1,000 by the defendant is stipulated to be made, not in the