Misc.] Supreme Court, May, 1896. H. A. Robinson and J. T. Little, Jr., for appellant. Joseph N. Folwell, for respondent. MCADAM, J. The action is to recover for personal injuries sustained by the plaintiff on January 4, 1896, while walking in an easterly direction on the southerly crosswalk at Lexington avenue and Fifty-second street in this city. She had crossed the westerly track of the defendant's cable road, was struck by one of its cars going north on the easterly track and thrown down upon her knees, receiving the injuries of which she complains. The plaintiff's testimony was to the effect that the street was prefectly clear as far as she could see; that she did not see any car coming; and the first thing she knew she was struck and knocked down. The accident occurred at about 9 p. m. It was a cold night, and some of the witnesses swear that the plaintiff was carrying a parcel, and that she was "bundled up," meaning that her head. was covered to protect her from the weather, a circumstance which might have interfered with her sense of hearing. According to the testimony of the gripman and of the conductor she struck about the middle of the car. The gripman positively testifies that the platform of the car had passed her, and this is highly probable, judging from the nature of her injuries and the fact that she fell toward the westerly track. So that instead of the car running into plaintiff, she unconsciously ran into the car. When interrogated particularly as to what portion of the car struck her she testified, "the front of the car; " and when asked what part of the front, said, "I could not tell, because I was struck before I knew it." The latter statement is undoubtedly the correct one. This testimony fails to establish either negligence on the part of the defendant, or freedom from fault on the part of the plaintiff. The front of the car having passed her, it was the plaintiff's duty to stop on the crosswalk until the car passed. The gripman had the right to assume that she would exercise this care, because ordinary prudence commands it. It is not an uncommon thing for a pedestrian seeing a car approach to advance to the middle of the street and cross as soon as the car has passed. Indeed it is difficult at times to cross certain of our crowded thoroughfares in any other way, owing to the presence of many passing vehicles in the roadway. The plaintiff's counsel lays stress upon the fact that his client did not hear the gripman's gong. There is no statute requiring the Supreme Court, May, 1896. [Vol. 17. ringing of a gong; yet if the exercise of proper care in the management of the car in a particular instance requires some warning to be given, it is negligence not to give it. Byrne v. R. R. Co., 104 N. Y. 362; 10 N. E. Repr. 539. But the failure to sound the gong did not relieve the plaintiff from the exercise of proper care in crossing the tracks. Krauss v. R. R. Co., 69 Hun, 482; Cullen v. D. & H. C. Co., 113 N. Y. 667. In Omslaer v. Traction Co., 168 Penn. St. 521, the court said: "The rule of 'stop, look and listen' before attempting to cross the tracks of a steam railroad is inflexible, and nonobservance of it is negligence per se. So much of this rule as requires a person about to cross the tracks of a steam railroad to 'look and listen' to discover whether a train is approaching is applicable to the crossing of a street railway operated by cable or electricity." In answer to the plaintiff's claim that she looked and did not see the car approach, the language of the court in Burke v. R. R. Co., 73 Hun, 35, is significantly applicable, for it is there said: “If a person looks she is supposed to look for the purpose of seeing, and if an object is in plain sight and she apparently looks, but does not see it, it is manifest she does not do what she appears to do, and has not complied with the rules of law." To the same effect see Holden v. Penn. R. R. Co., 169 Penn. St. 11. In order to recover the plaintiff was bound to prove affirmatively not only that the injuries were caused by the negligence of the defendant, but that she did not in any manner contribute thereto. Mahon v. Burns, 13 Misc. Rep. 19; Weston v. City of Troy, 139 N. Y. 282. She utterly failed to establish these essentials to a recovery, and for this reason the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event. DALY, P. J., and BISCHOFF, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. Misc.] Supreme Court, May, 1896. MARCUS NASANOWITZ, Appellant, v. EMMA HANF, Respondent. 1. Lease (Supreme Court, Appellate Term, May, 1896.) Statute of Frauds Memorandum. A receipt merely acknowledging payment of a month's rent under a lease to be given for more than a year, which does not describe or refer to the premises or specify the terms and covenants of the lease to be given, does not constitute a memorandum which will take the contract out of the Statute of Frauds. A part performance by the payment of money is not sufficient to take the contract out of the statute, as the money may be returned, and the parties thus placed in their former position. 3. Money had and received - Void contract for leasing. Money paid upon a contract for leasing which is void only because of the want of statutory formalities cannot be recovered as money had and received where the defendant was willing to perform and to make the covenants in the lease satisfactory to the plaintiff. 4. Evidence - Testimony on former trial. Any person who was present in court and heard the testimony on a former trial is competent to testify in respect thereto. APPEAL by plaintiff from judgment of the Eighth Judicial District Court. A. H. Sarasohn, for appellant. Jacob Levy, for respondent. MCADAM, J. The action is to recover $133.33 as so much money had and received by the defendant to the plaintiff's use. The money was paid to the defendant April 16, 1895, and the following receipt given therefor: "Received this day from Marcus Nasanowitz one hundred and thirty-three and 33-100 dollars for one month's rent in advance from May 1, 1895, to June 1, 1895. Lease to be given at $1,600 for one year, and $1,800 for next two years. E. Hanf." * * * The statute provides that "every contract for the leasing for a longer period than one year shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by is to be made." 4 R. S. (8th ed.), whom the lease p. 2589, § 8. * * * Supreme Court, May, 1896. [Vol. 17. The memorandum signed by the defendant was not intended to operate as a present demise; possession was not given or intended to be taken under it, and it appears upon its face that a formal lease was intended to effectuate the intention of the parties. Law v. Pemberton, 10 Misc. Rep. 362; s. c., 63 N. Y. St. Repr. 435; Fullerton v. Dalton, 58 Barb. 236; Sourwine v. Truscott, 17 Hun, 432; Mayer v. McCreary, 119 N. Y. 434. The lease which the defendant proposed to execute contains a fire clause; also covenant against assigning the lease or letting or underletting the premises; to permit persons wishing to hire or purchase to see the premises, and on or after the 1st of February next preceding the expiration of the term to permit the usual notice of "to let" or "for sale" to be placed upon the walls or doors of the premises; that all improvements made by the tenant shall belong to the landlord at the expiration of the term; that the landlord shall not be liable on account of leakage; that the tenant shall execute and fulfill all the ordinances of the city corporation applicable to said premises, and all orders and requirements imposed by the board of health and the police department in, upon or connected with said premises, and pay all Croton water taxes upon the premises during the term. If the receipt be considered the memorandum required by the statute, the tenant was not bound to assent to all the covenants imposed on him by the lease prepared by the defendant, but only to such of them as are usually incident to such hirings, and, therefore, presumed to have been within the contemplation of the parties, in order to secure the full effect of the agreement. The one the tenant particularly objected to was in regard to paying Croton water rent, and this the defendant could not as of right demand (Taylor's L. & T., § 45) in the absence of proof on her part that such a covenant is usually incident to such a hiring, a matter in respect to which no evidence was given. The memorandum required by the statute should contain the substantial terms of the contract expressed with such certainty that they may be understood without reference to parol evidence. Waterman on Spec. Perf., § 234; Browne on St. of F., § 371; Mentz v. Newwitter, 122 N. Y. 491; Routledge v. Worthington Co., 119 id. 592. In this instance the memorandum does not describe or even refer to the premises, the subject-matter and most material part of the contract. Lancaster v. De Trafford, 31 L. J. Ch. 554. It does not specify whether the subject-matter is a whole house or part of one; while the lease offered describes parts of two adjoining houses as the property. Misc.] Supreme Court, May, 1896. It has been suggested that the payment of the $133.33 constituted a part performance sufficient to take the case out of the operation of the statute. But the authorities hold that such result does not always follow; for the money may be returned and the parties placed in the situation they were in before the payment was made. Rosen v. Rose, 13 Misc. Rep. 565; 68 N. Y. St. Repr. 370; 34 N. Y. Supp. 467; Dunckel v. Dunckel, 141 N. Y. 427. Aside from this, the rule of law is that to take a case out of the operation of the statute there must have been full performance by one of the parties to the contract, the doctrine of part performance being confined to courts of equity. Waterman on Spec. Perf., § 259. Assuming, therefore, that the contract is void, not because it was illegal, but for want of the ordinary statutory formalities, it does not follow that the plaintiff is entitled to recover back the amount paid by him as so much money received by the defendant to and for his use. The rule allowing a recovery in such cases is confined to instances where the party receiving the money has refused or become unable to carry out the contract on his part, the plaintiff himself having faithfully performed or offered to perform. Dowdle v. Camp, 12 Johns. 451; Browne on St. of Fr. (3d ed.), § 122; Lockwood v. Barnes, 3 Hill, 128; Abbott v. Draper, 4 Den. 51; Collier v. Coates, 17 Barb. 471; Calvin v. Prentice, 45 N. Y. 165; Harris v. Frink, 49 id. 24. This requires us to examine the testimony for the purpose of determining whether the failure to carry out the arrangement was owing to the fault of the plaintiff or defendant, and whether any error to the prejudice of either party was committed in determining this question. The defendant testified that when the plaintiff objected to the water tax she agreed to eliminate it from the lease. The plaintiff denied that the defendant expressed any such intention, and this evidence became material to the determination of the issue involved. With the view of contradicting the defendant in respect to this matter the plaintiff tried to show by those who heard the defendant testify upon a former trial of the action that the defendant testified differently in respect to the water tax; but the justice, under objection by the defendant's counsel, declined to permit the plaintiff to make such proof, upon the ground that the record of the former trial was the best evidence. There was no necessity for producing the stenographer who took the evidence on the previous trial, for any person who was present in court and heard the testimony was competent to testify in respect thereto. Grimm v. Hamel, 2 Hilt. 434; Pickard v. Collins, 23 Barb. 444; Sitterly v. Gregg, |