App. Div.]

Third Department, November, 1911.

The court charged the jury that there was no dispute in the testimony that the lamps upon the machine were not lighted, and left it to them to say whether the defendants, in the exercise of reasonable care, ought to have had the lamps lighted, and whether any signal ought to have been given, under the circumstances of the case, by the parties operating the machine and whether any signal was given.

The theory upon which the action was tried and submitted to the jury was that the appellant was liable to the plaintiff, not only for the negligence of the owner of the car in which he was a passenger, but for the negligence of the owner and driver of the car in tow. I know of no principle upon which the appellant can be held liable under the circumstances surrounding the driving of the cars on this occasion. The uncontroverted facts show that the appellant did not employ, pay, direct or control the driver of either car in any way. His only connection with the accident was the fact that he was a passenger and procured the rope and assisted in tying it to the cars. It is also to be observed that, independent of the fact that the driver of the car, in which the appellant was riding as his guest, was not under the direction or control of the appellant, so that his negligence, if there was any, cannot be imputed to the appellant, we have the undisputed fact that the negligence of this driver in operating his car was not the cause of the accident. His car was seen by the plaintiff, and had passed him when the accident occurred.

If it be assumed for the purposes of the argument that the defendant was negligent in procuring the rope, and is chargeable for the manner in which the cars were connected, it is clear that this negligence was not the proximate cause of the accident. The negligence of Wager, the driver of the car in tow, was an intervening and the responsible cause of the accident. It was his omission to recross the street and to follow straight behind the other car. Neither Hawley nor the driver of the forward car was bound to anticipate that he would continue in the same direction and thereby cause the rope to sweep the street, without which the accident would not have happened. In this respect this case is not distinguishable on principle from Leeds v. New York Telephone Co. (178 N. Y. 118), where an

Third Department, November, 1911.

[Vol. 147.

intervening force came in upon the existing situation and produced the plaintiff's injuries.

It follows, therefore, that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, KELLOGG, J., concurring in result in memorandum, except BETTS, J., dissenting in opinion.

KELLOGG, J. (concurring in result):

The jury was justified in finding that the primary cause of the accident was the negligent act of the defendant Hawley in tying the trailing automobile to the other, which was fifty feet ahead of it, and that this negligent manner of drawing the automobile called upon him to observe the people in the highway and use care to prevent their falling into the trap which he had set. It was evident that if the forward automobile started from one side of the road to the other the trailer would not at all times be upon the same side of the road with it, but that the two at sometime, with the connecting rope, would obstruct the greater part of the highway. The chauffeur in the trailing automobile could not prevent it from following the other at a distance of fifty feet in a diagonal manner across the road.

While I think the liability of said defendant was a fair question for the jury, it is apparent that he was prejudiced by the refusal of the court to charge as requested, that if the jury "find that the sun did not set on the day in question until two minutes past seven, that under the statutes the defendants were not required to place lights upon their machines until two minutes past eight." I, therefore, vote for a reversal of the judgment and order.

BETTS, J. (dissenting):

The facts as claimed by the plaintiff in this case can be stated in a nutshell. From the evidence given to the jury the jury might have found: That the defendant Hawley, a farmer and live stock speculator of the town of Stillwater, after the accident to Wager's automobile, which had severed the relations of the defendants Wager and Hawley as

App. Div.]

Third Department, November, 1911.

host and guest so that Hawley ceased to be Wager's guest, secured the services of Mr. Peets of Colonie, a butcher, to tow the injured automobile and take the entire party back to Cohoes; that Hawley secured a long rope and paid for it and tied or helped tie the two automobiles together, tying them in such a way that they were some fifty or sixty feet apart; that Hawley and his wife, with others, got in Mr. Peet's auto and the defendant Wager remained in his, and that Hawley was on the front seat in the front auto in charge of the two autos, having secured Peet's auto, and that while passing up Columbia street with a rope sweeping the full width of it, the autos traveling five or six miles an hour, or pretty fast, the procession was the length of both autos and fifty or sixty feet of rope; that it was dark and neither auto was lighted, one on the right side of the street and the other on the wrong side; that no horn was sounded on either automobile; that plaintiff came into the street on his bicycle and traveled in the same direction as the two autos were going; saw the head auto and escaped it; did not see the rope and was caught and thrown and injured by it; that the head car was dragging a rope along the street and dragging the rear car; that Peets offered his services to Hawley and they were accepted by Hawley, so that Hawley became the host and Wager the guest at the time of the accident and injury to plaintiff.

Under such testimony it was, in my opinion, a proper case for a jury as to whether Hawley was in command and control of the party that propelled or dragged the invisible rope and rear auto along and across the street or not, and if he was in command and control and doing a negligent act in going along with such a procession at night without the lights of either automobile being lighted, both connected by fifty or sixty feet of invisible rope, and no horns sounded and sweeping the entire width of street, and that negligence injured plaintiff, and as plaintiff was not guilty of contributory negligence as matter of law, I think that the verdict of the jury should not be disturbed and the judgment should be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Third Department, November, 1911.

[Vol. 147.

HOWARD HENDRICKSON, Appellant, v. PETER J. CALLAN,

Respondent.

Third Department, November 15, 1911.

Contract agreement to purchase stock within a year- necessity of tender-obligations of parties.

Where each of two parties agrees to do a certain thing at the same time, the thing to be done by one to be the consideration for that to be done by the other, neither party can maintain an action on the contract until he has put the other in default by a tender of performance on his part before the expiration of the contract.

Where, however, defendant agreed in consideration of plaintiff's subscription for $3,000 worth of bonds, "to purchase fifteen hundred dollars of such subscription within one year" from a certain date, plain

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tiff is not required to make a tender of the $1,500 worth of bonds within the year in order to charge defendant on the contract.

A tender or offer of the bonds within the year is not a condition precedent to plaintiff's right to recover, and it is enough for him to show that he tendered the securities before the commencement of the action. When plaintiff had subscribed for $3,000 worth of the bonds defendant was obliged under the contract to take half of them and to pay for them within the time stated.

APPEAL by the plaintiff, Howard Hendrickson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 9th day of January, 1911, upon the decision of the court rendered after a trial at the Albany Trial Term, both parties having moved for the direction of a verdict at the close of the case.

The action was brought to recover the sum of $1,500 claimed to be payable on an agreement of which the following is a copy: "In consideration of Howard Hendrickson subscribing for three thousand dollars of bonds of the Hygienic Ice & Refrig erating Co., of Albany, N. Y., I agree to purchase fifteen hundred dollars of such subscription from him within one year from January 1, 1909. Such bonds so purchased shall carry with it such capital stock as may accompany such bonds. "Dated, Dec. 24, 1908.

"P. J. CALLAN,

"HOWARD HENDRICKSON."

App. Div.]

Third Department, November, 1911.

The court found that the defendant requested the plaintiff to subscribe for a portion of the bonds; that the defendant entered into the agreement in order to induce the plaintiff to increase his subscription to $3,000; that immediately after its execution, and relying thereupon, the plaintiff subscribed said syndicate agreement and thereby agreed to take $3,000 par value of said bonds; that during the year 1909 the plaintiff was compelled to and did pay, by reason of his subscription, $3,000 for said bonds and received $3,000 par value of bonds and $3,000 par value of stock of said company. The court also found: "That the only tender made by plaintiff to defendant of said bonds and stock, or any portion thereof, was made on January 3rd, 1910," and "that defendant refused to accept said bonds and stock so tendered to him by plaintiff on January 3rd, 1910, on the ground that such tender was not made within one year from January 1st, 1909."

A. Page Smith, for the appellant.

Neile F. Towner, for the respondent. SEWELL, J.:

It is not claimed that the agreement in question is void for want of mutuality, for fraud, mistake or want of consideration, and it is undisputed that the defendant actually received the consideration for his promise at the time of making it. The only defense relied upon by the defendant to escape from the plain obligation assumed by him under the agreement is that no tender was made by the plaintiff of the bonds and stock within one year from January 1, 1909. It is quite obvious, we think, that the cases cited by the defendant in support of this contention are distinguishable from this case. They are cases in which the promises were mutual and concurrent, where two parties agreed to do each a certain thing on the same day, and the thing to be done by one was the consideration for that which was to be done by the other, and the court held that, because concurrent action was required, neither party could sue at law until he had put the other in default by a tender of performance on his part before the expiration of the contract. (Rutty v. ConAPP. DIV.- VOL. CXLVII.

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