"The lands heretofore taken or to be taken for storage, reservoirs, or for other constructions necessary for the introduction and maintenance of a sufficient supply of water in the city, or for the purpose of preventing contamination or pollution, shall be assessed and taxed in the counties in which they are or may be located, in the manner prescribed by law, exclusive of the aqueducts."

That act has been construed by the Court of Appeals in Matter of City of New York v. Mitchell, 183 N. Y. 245, 76 N. E. 18, and by this court in People ex rel. New York City v. Neville, 185 App. Div. 799, 170 N. Y. Supp. 583, and in each instance the construction given was broad in accord with the language. Thus our opinion, written by the Presiding Justice, said:

"Thus the lands to be assessed and taxed are specified as those taken for 'storage, reservoirs, or for other constructions necessary for the introduction and maintenance of a sufficient supply of water in the city, or for the purpose of preventing contamination or pollution.'" 183 App. Div. at page 802, 170 N. Y. Supp. 585.

* * *

It seems to me manifest that the constructions here involved come within the fair scope of the expression "for other constructions necessary for the purpose of preventing contamination or pollution," and that therefore they are assessable and taxable. seems to me, moreover, that the reasoning or argument of the learned counsel for the appellant is faulty, in that he is mistaken in his view that the city has constructed and is maintaining those works for the benefit of the village. Obviously the proper view is that in so doing it acted for its own benefit, to save its water supply from pollution. If it were so acting solely for the benefit of the village, it may be well doubted whether its authorities could lawfully expend the money of the city for that purpose, and even whether or not legislation permitting them to do so would be constitutional.

I conclude, therefore, that the learned justice at Special Term took the correct view of the matter. Hence I advise that the order appealed from be affirmed with $10 costs and disbursements. All concur.

(192 App. Div. 59)

KAPLAN v. POSNER.

(Supreme Court, Appellate Division, Second Department. May 21, 1920.) Municipal corporations 706 (7)—Though witness of plaintiff testified view was unobstructed, contributory negligence held for jury.

Where plaintiff was struck by defendant's automobile, without warning, immediately after leaving sidewalk at street crossing, and his eyewitnesses testified that the view was unobstructed, the credibility of plaintiff's testimony that he did not see the automobile was for the jury, where other evidence, including photograph, showed obstruction of view by elevated railway pillars.

Appeal from Trial Term, Kings County.

From a

Action by Herman Kaplan against Herman S. Posner. judgment in favor of defendant on a nonsuit, plaintiff appeals. Judgment reversed, and new trial granted.

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

(182 N.Y.S.)

Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ.

David S. Myers, of New York City, for appellant.

Walter L. Glenney, of New York City, for respondent.

KELLY, J. This was a crossing accident. The plaintiff a man 47 years of age, was on his way home about 12 o'clock at night, traveling north on the west or left-hand side of Keap street, in Brooklyn. He reached Broadway, which runs approximately east and west, and, intending to cross Broadway, as he stepped off the southerly curb, he was immediately struck by defendant's automobile, a small Ford delivery wagon, which came from plaintiff's left-hand side, running east on Broadway, close to the southerly curbstone, and traveling very fast-pretty quick, or, as one of plaintiff's witnesses testified, "just like wind.' There was evidence that the automobile did not slow up as it approached Keap street, and that it struck the plaintiff immediately as he stepped from the curb. There was evidence that no warning was given of its approach to the crossing; the plaintiff testified that when he came to the corner he looked up and down Broadway to see if anything was coming, and that he did not see it or hear it; he stepped but 2 or 3 feet, when he was struck, knocked down, rendered unconscious, and seriously injured.

At the close of the plaintiff's case the learned trial justice granted defendant's motion for nonsuit upon the ground that plaintiff had not shown freedom from contributory negligence, stating that the conclusion was irresistible that, if plaintiff had looked, he would have seen the approaching automobile as he stepped off the curb.

The plaintiff, who had received a fracture of the skull, necessitating removal of part of the skull itself, testified on cross-examination and in answer to the question of the learned justice, that at the corner of Keap street and Broadway the view was practically unobstructed up and down the latter thoroughfare; that he could see 10 blocks in either direction. It was because of this evidence that the learned judge dismissed the complaint on the principles laid down in Dolfini v. Erie R. R. Co., 178 N. Y. 4, 70 N. E. 68, and Farrell v. Fire Insurance Salvage Corps, 189 App. Div. 795, 179 N. Y. Supp. 477, holding that, as defendant's automobile was close upon the plaintiff as he stepped from the curb, his statement that he looked and did not see it was incredible. But it is evident from the record that the attention of the learned trial justice was not called to the fact that the evidence in the case showed that a pillar supporting the elevated railroad in Broadway stood at the southerly curb and to the left of plaintiff as he approached the crossing; and plaintiff did not introduce evidence as to its dimensions, but it is clearly shown on the original photograph introduced in evidence, submitted to the court on argument and imperfectly reproduced in the case. It is one of the ordinary lattice work elevated railroad supports, and is one of a line. of such pillars erected close to the south curb along Broadway.

While the evidence of plaintiff and his witness, seated in a window

on the second floor of a building west of Keap street, was that there was a view from the corner of Keap street down Broadway for several blocks, it is evident that the witnesses were not considering the obstructions caused by the elevated pillars. Their attention was not called to them, but the physical conditions as to view are as apparent on examination of the photograph as they must be on reading the testimony as to the presence of the elevated structure in the street and considering what plaintiff could see when he looked to the west. The accident occurred about midnight, the streets were comparatively free from traffic. The defendant's automobile-a Ford delivery car-approaching at high speed from the west close to the south curb, the plaintiff's view might well be obstructed by the elevated railroad pillars, so that it was a question for the jury to say whether his statement that he did not see the approaching car was incredible, or whether, hearing no warning or sound, he was guilty of contributory negligence in proceeding on his way. He testified that he paused at the corner and that he looked up and down Broadway. The law does not say when he must look, or how often he must look; these things. cannot be defined in advance by any hard and fast rule. Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. (N. S.) 487; Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428.

If there were no obstructions to the view, undoubtedly the law declared in the Dolfini Case, supra, would be applicable; but with these conceded obstructions his contributory negligence was for the jury. They might have found upon the evidence that the elevated railroad pillar at the corner of Keap street, and the line of elevated pillars along the curb to the west, interfered with plaintiff's view of the rapidly approaching automobile close to the curb, so that he was not chargeable with negligence because he did not see it. A similar situation was presented in Austin v. Long Island R. R. Co., 69 Hun, 67, 23 N. Y. Supp. 193, affirmed 140 N. Y. 639, 35 N. E. 892. In that case the view, otherwise unobstructed, was interfered with to some extent by a single advertising sign some distance from the corner, but between the traveler and the approaching train. Mr. Justice Cullen at Trial Term held that the obstruction made the contributory negligence of the deceased a question for the jury, and the judgment was affirmed at the General Term in this Department and in the Court of Appeals.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.

(182 N.Y.S.)

PEARLBERG v. LEVISOHN et al.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Frauds, statute of ~152 (1)-Need not be pleaded, when complaint alleges contract valid under statute.

The statute must generally be pleaded, when the complaint shows the contract is invalid under the statute, or does not show whether it is valid or invalid; but it need not be pleaded, where the complaint pleads a contract that would be valid under the statute, as where it alleges a "written agreement," in which event plaintiff cannot succeed if the memorandum does not conform to the statute, although defendant has not pleaded it.

2. Frauds, statute of 83-Applies to contract for sale of standard article yet to be manufactured.

Under Personal Property Law, § 85, subd. 2, making the statute applicable to goods to be manufactured, unless manufactured by the seller especially for the buyer, and not suitable for sale to others in the ordinary course of the seller's business, contract for the sale of standard articles sold generally in the trade must be in writing, though articles were not yet manufactured.

3. Frauds, statute of 113 (1)—Memorandum not stating terms or time of delivery held sufficient.

A memorandum on a printed form of the order book, containing the same of the buyer, a detailed description of the goods, and the price, which was made by one of the defendants and given to plaintiff, is sufficient under the statute, though it does not state terms or time of delivery, where there was no agreement in those respects, since such an agreement was not essential to a valid contract.

4. Frauds, statute of ~115 (2) —Printed name of seller, adopted as signature, is sufficient "signing."

The printed name of the seller on his order blanks, if adopted by him as his signature, is sufficient signing of the memorandum to comply with the statute of frauds.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sign-Signature.]

5. Frauds, statute of 115 (5)—Memorandum may be signed on any part of paper.

Since the statute merely requires that the memorandum be signed, not that it be subscribed, it is complied with, if the signature appears on any part of the paper.

6. Sales 406-Buyer need not tender after sellers' refusal.

Where the sellers not only failed to deliver the goods, but told the buyer they had sold them to other parties, the buyer can recover damages without a tender.

7. Appeal and error 1033 (9)-Defendant cannot complain that proof warranted larger judgment for plaintiffs.

Defendants cannot complain that the trial court did not award plaintiffs as large damages as the proof might have warranted.

Appeal from Municipal Court, Borough of Brooklyn, Third District.

Action by Morris Pearlberg against Julius Levisohn and another, copartners trading as Julius Levisohn & Son. Judgment for plaintiff, and defendants appeal. Affirmed.

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

Argued May term, 1920, before CROPSEY, CLARK, and KELBY, JJ.

Myers & Kutner, of New York City (Joseph H. Kutner, of New York City, of counsel), for appellants.

Louis Rosenzweig, of New York City, for respondent.

CROPSEY, J. [1] The principal question upon this appeal is whether the memorandum of sale complies with the statute of frauds. The plaintiff claims that defendants cannot raise this point, because they failed to plead the statute. It is a general rule that the statute must be pleaded. Crane v. Powell, 139 N. Y. 379, 34 N. E. 911. But this is true only when the complaint shows that the contract sued upon is invalid under the statute, or when the complaint does not show whether the contract is valid or invalid. Where the complaint pleads a contract that would be valid under the statute, the plaintiff cannot succeed if the memorandum does not conform to the statute, although the defendant has not pleaded it. Williamsburg City Fire Ins. Co. v. Lichtenstein, 181 App. Div. 681, 685, 169 N. Y. Supp. 146. The complaint in the case at bar alleges a "written agreement."

[2] Nor is the other contention of the plaintiff sound, namely, that the statute does not apply because the goods were to be manufactured. The statute expressly covers such goods, unless they "are to be manufactured by the seller especially for the buyer, and are not suitable for sale to others in the ordinary course of the seller's business." Personal Property Law (Consol. Laws, c. 41) § 85, subd. 2. These suits were standard articles, sold generally in the trade, and hence the statute is applicable.

[3] The defendants are manufacturers of clothing, and from them the plaintiff ordered some goods. The memorandum is made on a printed form taken from the order book of the defendants. At the head of it is the name of defendants' firm, with the statement that they are manufacturers of clothing. The printed part of the form contains a place for the date, order number, name of purchaser, directions for time and method of shipment, terms, etc., and below are columns showing the lot, style, and quantity of the different sized garments ordered, with the prices. This order has written on it the date, the name of the plaintiff, who was the purchaser, and a detailed description of the lot, style, and quantity, giving the different sizes and the different prices. All this writing was made by one. of the defendants, and the paper was then given to the plaintiff; the defendants keeping a carbon copy of it for their use.

It is manifest that this is a memorandum of an agreement to sell to the plaintiff the goods specified at the prices named. All the necessary terms of a contract and all the terms of the agreement actually made appear on the face of the memorandum. It does not state the terms or the time of delivery, but there was no agreement as to either, and there need be none to make a valid agreement. The plaintiff was permitted to testify, over objection, that at the time he gave the or