the event of a death resulting from external, violent and accidental means, as herein before provided, notice of the accident must be given as hereinbefore provided, and, in addition, notice of the death must be given in writing to the Supreme Secretary within ten days after the death." Under these provisions very clearly a double notice was necessary in death cases. A material change of language in the two Constitutions, however, indicates a material change of purpose, and that purpose, as we construe the language, was the commendable one of removing unnecessary burdens from claimants and abolishing the necessity of double notices in cases where double notices could serve no useful purpose. Unquestionably if the insured member had died within ten days of the accident the notice given in this case would be sufficient. As we construe the requirements as to notice in death cases, such notice does not depend on the length of time which intervenes between the accident and death, but if death occurs, whether within ten days or not, the same notice suffices. This seems the reasonable construction. No good reason is apparent why a different notice should be required in one case than is required in the other, and if the defendant intended to require a different notice when death occurs more than ten days after the accident than it requires when death results immediately or within ten days of the accident, such intent should be made manifest by more specific and definite language. The judgment should be affirmed, with costs. All concur. GOLDBERG v. COLLINS. (Supreme Court, Appellate Term, First Department. May 1, 1917.) MUNICIPAL CORPORATIONS CONTRIBUTORY NEGLIGENCE. In an action for injuries sustained in collision with automobile at street crossing, held, under evidence, that plaintiff was guilty of contributory negligence barring recovery. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1518.] Guy, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by William Goldberg against Joseph E. Collins. Judgment for plaintiff, and defendant appeals. Reversed, with costs. Argued April term, 1917, before GUY, COHALAN, and DELEHANTY, JJ. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and E. Crosby Kindleberger, both of New York City, of counsel), for appellant. Morris E. Gossett, of New York City, for respondent. COHALAN, J. This action was brought to recover for personal injuries sustained by the plaintiff on the evening of January 18, 1916, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. 164 N.Y.S.-52 while he was crossing Atlantic avenue at Franklin avenue, in the borough of Brooklyn. The bill of particulars sets forth that the defendant was driving an automobile carelessly and negligently, without giving the plaintiff an opportunity to safely cross the highway, and that the defendant was driving at an excessive rate of speed and “gave no warning when he turned into Atlantic avenue from Franklin avenue." The plaintiff recovered a judgment for the sum of $325, and defendant appeals therefrom. At the place where the accident occurred, Atlantic avenue is intersected by Franklin avenue at right angles, Franklin avenue running north and south, and Atlantic avenue running east and west. There are no trolley cars running on Atlantic avenue, but on Franklin avenue there are double tracks with cars running north and south. Atlantic avenue at this point is about 80 feet wide, each side next the curb being asphalted for from 20 to 30 feet wide, leaving a space in the middle of the street from 30 to 35 feet covered with dirt, due to an excavation for the Long Island subway. The plaintiff claims that he had an appointment to meet one Kramer, at the northeast corner of Atlantic and Franklin avenues, and that when he reached there, he walked up and down on Franklin avenue, for some time waiting for Kramer to appear; that finally he started to walk across Atlantic avenue to where as he said "the cars are coming." A large and correct photograph of the locality was offered in evidence. This photograph shows that there are no crosswalks passing over Atlantic avenue from north to south on either side of Franklin avenue. The plaintiff claims that when he left the sidewalk at the northeast corner of Atlantic avenue he looked in all directions and saw nothing in sight, and that when he got to the middle of Atlantic avenue he looked again and saw no vehicles approaching; that he walked along slowly, and did not see the automobile until struck by it, as he says "about two steps from the southeast corner of Atlantic avenue." The plaintiff and Kramer were the only witnesses sworn on behalf of the plaintiff. The latter witness testified that he was standing on the south sidewalk of Atlantic avenue. His testimony as to the location of the automobile at this time is as follows: "Q. Where was that machine when you saw it for the first time? A. About two houses away from me and Goldberg. Q. Where was the machine itself on the street? A. Was turning from Franklin into Atlantic. the opposite side of Atlantic avenue from you? A. Yes, opposite side. Q. Was it on Franklin avenue then or was it on Atlantic avenue then? A. Just about at that moment, at that glance of the eye, that moment, was about the middle of Atlantic and Franklin. Q. Do you mean to say by that, that the automobile the first time you saw it was on the corner opposite to you? A. Just he was about the middle from the beginning of Atlantic avenue on the other side. Q. At the time you saw the machine for the first time did you see Goldberg at that time? A. Yes. Q. Where was Goldberg at the time you first saw the machine, how many steps was he away from the sidewalk? A. About three steps from the sidewalk. Q. So that when Goldberg was three steps away from the sidewalk, this machine was at the corner of Franklin and Atlantic avenue turning into Atlantic, is that right? A. Yes. Q. That corner was the one opposite to you across Atlantic avenue, is that right? A. Yes, across the way. Q. Was it across the way on Atlantic avenue, or was it across the way on Franklin avenue? A. Franklin avenue. Franklin just across way from me, not on this side or on that side. Q. As this machine was approaching Mr. Goldberg, was it running along Atlantic Q. At avenue, or was it running along Franklin avenue? A. Just turn around. Q. Had the machine been on Franklin avenue or had the machine been on Atlantic avenue, just before this accident happened? A. Just between my glance of the eye seemed all in a moment, between Franklin and Atlantic. Q. Do you want the jury to understand, before Goldberg could take three steps to bring him to the curb of the sidewalk, you were standing on, that that machine had made a swing from the corner opposite you, swung all the way around into Atlantic avenue? "Plaintiff's Counsel: I object to it as argumentative. (Objection overruled. Exception.) Q. Is that true? A. Yes." Kramer stated that: The automobile was running very fast, and was "behind Goldberg turning into Atlantic avenue; that it was about three steps away from the sidewalk where I was. I tried to raise my hand, but before I had a chance to attract attention of Goldberg he was knocked down." The machine was a Ford runabout, and Kramer swore that it ran about twice its length after it struck the plaintiff before it stopped. It was undisputed that the car did not run over the plaintiff, and that he was struck by the car radiator. The physician who attended the plaintiff testified that he found: "A lacerated wound of the upper lip on the right side, one tooth knocked out and several loosened, bruises on his right arm and forearm, and a contusion to the right side of the chest." The defendant testified that he was the chauffeur for a fire department automobile; that he was detailed as chauffeur to Deputy Chief Goodeson, and at the time of the accident was proceeding from the home of Goodeson to engine house No. 234 for the purpose of getting Deputy Chief Davin; that he did not drive on Franklin avenue that day except to cross it at Atlantic avenue near where the accident occurred; that as he came to Franklin avenue, a trolley car northbound stopped, and he crossed ahead of the car; that he continued straight east along Atlantic avenue, and that suddenly the plaintiff "popped up so quick I did not see him." He says he stopped the car within less than 1 foot after the car hit the plaintiff, and that the car did not run over the plaintiff. He further said that the place where the accident happened was some distance from the southeast corner of Atlantic avenue, and about 15 feet from the south curb of that avenue. In this, he was fully corroborated by five witnesses. Four of these witnesses were apparently wholly disinterested, and one was an examiner in the law department of the city of New York, who was passing at the time. All of these witnesses testified that the plaintiff left the sidewalk on the north side of Atlantic avenue at some distance east from the northeast corner, and was proceeding in a diagonal direction across Atlantic avenue towards the southeast corner of that avenue; that he was running or walking very rapidly with his head inclined forward, evidently hastening to catch the trolley car, which had stopped at the southeast corner of Atlantic avenue. Each of these witnesses pointed out upon the photograph the positions of the trolley car, the plaintiff when he started to cross Atlantic avenue, the direction in which he was going, and the point of collision; all agreed upon the material facts and in complete substantiation of the defendant's statements. Three of these witnesses were boys on their way home from Prospect Park. Each was about 15 years of age, and, except from some embarrassment arising from a severe cross-examination, told their stories succinctly and intelligently. The motorman, one of the defendant's witnesses, who was standing on the platform of his car, saw the accident, although his car had started slowly ahead after the defendant had crossed the trolley tracks, and to whom he had given the right of way. The respondent's attorney criticizes the testimony of this man, because he said he looked from the front of his car to the right side, and claims that if he saw the plaintiff, it must have been after the automobile passed out of his line of vision, "otherwise the auto would have been directly in his line of sight." This is fallacious reasoning. A man standing on the front end of a trolley car, elevated 2 or 3 feet above the street, might easily see over and beyond a car of the size and height of the one driven by the defendant, and his view would in no way be obstructed. thereby, and the testimony showed that the automobile crossed several feet distant from the trolley car before the latter started, which was at the corner of Atlantic and Franklin avenues. The charge of negligence on the part of the defendant must rest entirely upon the testimony of the witness Kramer. His testimony as to the relative positions of the plaintiff and the defendant's car just prior to and at the time of the accident is contradictory and improbable. He says that when he first saw the automobile it was about "two houses from me and Goldberg." Then he says it was on the opposite side of Atlantic avenue, which would be at a distance of about 80 feet; then that it was "about the middle of Atlantic avenue," and that at this time the plaintiff was about "three steps from the sidewalk." Again he says that when Goldberg was about "three steps from the sidewalk the automobile was at the corner of Atlantic avenue opposite him." When he was asked if he wanted the jury to understand that before Goldberg could take three steps to bring him to the curb of the sidewalk, where the witness was standing, that the automobile had made the swing around the opposite corner, "all the way around into Atlantic avenue," and he said he did. Later on he testified that the automobile came "behind Goldberg, turning into Atlantic avenue," that it was about three steps away from the side where he was standing, and that he tried to signal Goldberg with uplifted hand, but was too late. The plaintiff's attorney evidently realizes the varying testimony of Kramer, as he makes this reference to it: "He testified that, as Goldberg neared the sidewalk upon which he was standing, as the plaintiff was about three steps therefrom, he saw the automobile coming very fast, and that it knocked him down on the street, indicating that the automobile hit him in the back." This is exactly what would have occurred if the automobile had come from the direction testified to by Kramer. But unfortunately for this situation, no one claims that the plaintiff was "hit in the back. He was hit in the right side of the face and chest, and this corroborates the testimony of the defendant's witnesses that the automobile came from the west along Atlantic avenue and was not in Franklin avenue, except when crossing it. That the defendant was not running at a dangerous rate of speed is evidenced by the almost undisputed testimony that he stopped his car within about 1 foot after he hit the plaintiff, and the wholly undisputed testimony that the automobile did not run over him. We have gone into a discussion of the testimony with considerable detail, as we are not disposed to disturb the findings of a jury; but the trial of the case took about two days; some of the testimony was taken out of the regular order; the examination of the witnesses was at times long and severe, and it is not surprising that the jury failed to sufficiently analyze the testimony in order to give a full consideration to all the material facts adduced. The record consists of 215 pages, and a careful examination shows that the plaintiff was guilty of contributory negligence and may not recover herein. Judgment reversed, wth $30 costs, and the complaint dismissed, with costs. DELEHANTY, J., concurs. GUY, J., dissenting. PERUVIAN PANAMA HAT CO. v. MARCUS. (Supreme Court, Appellate Term, First Department. May 1, 1917.) JUDGMENT 601-BAR-ACTIONS FOR Price and for Breach. Defendant contracted for the purchase of a large quantity of hats, and after delivery of a portion plaintiff recovered for goods sold and delivered. Before delivery of the balance of the order, defendant repudiated the contract; such repudiation occurring prior to the action for goods sold and delivered. Held, that while causes of action cannot be split, and but one cause of action arises on the breach of several distinct covenants contained in a single instrument, yet plaintiff possessed two distinct causes of action, and his recovery for goods sold and delivered did not bar an action for damages for breach of contract. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1116.] Appeal from Municipal Court, Borough of Manhattan, First District. Action by the Peruvian Panama Hat Company against Max Marcus. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Argued April term, 1917, before GUY, COHALAN, and DELEHANTY, JJ. Michael Kaufman, of New York City, for appellant. DELEHANTY, J. The parties hereto entered into a contract for the sale of 338 dozen of Panama hats. Thereafter 241 dozen were delivered, and the plaintiff recovered therefor in an action in the City Court on the ground of goods sold and delivered. Defendant repudiated the contract of sale before the delivery of the balance of the order, and for such breach this action was instituted in the Municipal Court to recover damages. It appearing that the repudiation occur For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |