two or more persons concur in contributing to an accident, the injured person may hold them, jointly and severally, liable. Where concurrence in causes is charged, the test is, simply, could the accident have happened without their cooperation?"

A case in point, both upon the issues of negligence and of contributory negligence under somewhat similar circumstances, is Hanley v. James Butler, Inc., 167 App. Div. 329, 331, 153 N. Y. S. 39, 40, where the court, by Mr. Justice Clarke, said:

"The double swinging doors were obviously for the use of customers. There was no reason to suppose that the two floors were on different levels. The step, only 131⁄2 inches wide beyond the doors, with a fall of 92 inches, was created and maintained by the defendant. This, if not obviously faulty construction, constituting a trap, at least raised a question in that regard for the consideration of the jury. The question of contributory negligence under the circumstances undoubtedly was for the jury."

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

MERRELL and MCAVOY, JJ., concur.

PROSKAUER, J. (dissenting). The nearness of the step to the revolving door was not the proximate cause of this accident. On the plaintiff's testimony, her fall was occasioned by the impact of a wing of the revolving door upon her. She was thrown to the ground, not because she stumbled or slipped upon the step, but because she was struck by the revolving door. Her injury was occasioned by no act or omission of the defendant.

Hanley v. James Butler, Inc., 167 App. Div. 329, 331, 153 N. Y. S. 39, 40, is not controlling. There, there were two sets of double swinging doors; outside of the second set was a very narrow step, with a fall of 91⁄2 inches. As is stated in the opinion, "There was no reason to suppose that the two doors were on different levels," and there was a situation from which a jury was to say whether there was not "obviously faulty construction constituting a trap." The plaintiff there fell because of the nature of the construction. No such situation exists in the case at bar.

For this reason the trial court correctly dismissed the complaint, and the judgment should be affirmed, with costs.

DOWLING, P. J., concurs.

(223 App. Div. 222)

(227 N.Y.S.)

DORRANCE, SULLIVAN & CO. v. BRIGHT STAR BATTERY CO. Supreme Court, Appellate Division, First Department. March 30, 1928. Contracts 10(2)-Letter reciting desire to employ plaintiff as advertising agent, though accepted, held not enforceable as exclusive agency contract for lack of mutuality.

Letter from defendant to plaintiff, reciting, "We desire to do our advertising through you, and this letter is to employ you as our advertising agents and merchandising advisors,' accepted at foot thereof by plaintiff's signature, without anything therein stating that defendant makes plaintiff its exclusive advertising agent, held mere option to place advertising with plaintiff during period specified at certain rates, and was not enforceable as exclusive advertising agency contract against either party, for lack of mutuality.

Proskauer and Merrell, JJ., dissenting.

Appeal from Special Term, New York County.

Action by Dorrance, Sullivan & Co. against the Bright Star Battery Company. From an order denying defendant's motion to dismiss the complaint, on the ground that it did not state a cause of action, defendant appeals. Reversed, and motion granted.

Argued before DOWLING, P. J., and MERRELL, FINCH, MCAVOY, and PROSKAUER, JJ.

A. H. Goodman, of New York City, for appellant.

Walter & Wolff, of New York City (Alfred A. Walter, of New York City, of counsel), for respondent.

MCAVOY, J. The action which this complaint states was commenced to recover commissions, which plaintiff claims it would have earned under an advertising contract if defendant had not breached it. The contract is in the form of a letter directed to plaintiff, and recites as its opening clause as follows:

"We desire to do our advertising through you, and this letter is to employ you as our advertising agents and merchandising advisors. We authorize you to plan, prepare, and place our advertising in accordance with our approval on the following basis, covering the period of your employment under the terms of this letter."

Then follows a paragraph setting forth the amount of commissions that plaintiff is to charge for the various kinds of advertising, and a statement that various papers, such as contracts, books, and correspondence relating to defendant's business, are to be open to au

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ditors of defendant during business hours. Thereafter it is recited that "these relations are understood to be mutually confidential and to remain so during the entire period of employment, which is to begin with the acceptance of this letter by you, and to continue in force for one year from date and thereafter until discontinued by 90 days' notice in writing, given by either party." This proposal was accepted at its foot by plaintiff signing its corporate name by its president. It was dated September 10, 1925, and the relations between the parties continued thereafter, defendant employing the plaintiff exclusively to do all its advertising from that date until the 1st day of February, 1927, almost a year and a half. When defendant gave written notice to plaintiff, pursuant to the terms of the contract, that it elected to cancel the contract as of 90 days later, to wit, May 1st of that year, 1927, plaintiff was no longer employed to do defendant's advertising relating to its business set out in the letter, but defendant ceased their advertising through plaintiff, and employed others to the extent set forth in schedules annexed to the complaint. The amounts of this advertising were over $21,000, upon which plaintiff's commissions would have been over $3,100, if this advertising during the 90 days' period, after notice of cancellation, had been placed through the plaintiff.

We hold that this letter is a mere option to place advertising with the plaintiff during the period described at certain rates; that it lacks mutuality and is not enforceable against either party, because it does not bind either or both of them to any definite or ascertainable obligations. Defendant in this letter merely asserts that it desires to employ the plaintiff as its advertising agent, but no offer to do all its advertising through plaintiff, or to give it any specific amount of advertising, is contained in the letter. The word "accepted," written across the lower face of the letter, does not bind plaintiff to any definite obligation. Nothing contained in the paper states that defendant makes plaintiff its exclusive advertising agent, and unless an intent to create an exclusive agency is obvious a construction finding such intent will not be given to the memorandum.

The defendant cites a recent decision in the Court of Appeals in Strauss v. Ernstein, 232 N. Y. 187, 133 N. E. 440, which rules that an agreement should not be interpreted as exclusive, and as depriving one party of natural rights, unless such feature is clearly expressed. It announces:

"The letter ought not to be interpreted, as between defendants and the Pawtuxet Company, as depriving the latter of the right to exercise its choice

(227 N.Y.S.)

in marketing its goods unless such intent is clearly expressed. We do not find it thus expressed. The words 'all sales are to be made through us' do not, in our opinion, confer any such right as defendants claim.' ""

The minds of these parties apparently did not meet on any definite quantity of business, which one party agreed to furnish during a stated period and the other party agreed to handle. Nothing is promised which would prevent the defendant from dealing with other agencies. The phrase, “We desire to do our advertising through you," is indefinite. It cannot have the significance of granting an exclusive agency. The letter is a mere unilateral offer, which arranged the fees and commissions in advance for a period of one year, subject to cancellation. Its design was to obviate the need of making new financial arrangements every time any business was done between the contracting parties. There was nothing in the instrument which imports an obligation on plaintiff's part to accept business from defendant, but, when it did so, then the fees and commissions fixed by the letter are controlling to the extent of such work as was received and accepted. There was a binding and unilateral contract with respect to the sums to be paid when advertising was sent and accepted. There was nothing exhibited here which bound defendant to supply the plaintiff with any definite amount of work, and plaintiff placed itself under no obligation to perform any specific amount of work. Thus, where no work was sent or accepted, there was no mutual obligation out of which a contract could arise.

In Railroad Service & Advertising Co. v. Lazell, 200 App. Div. 536, 192 N. Y. S. 686, the alleged agreement consisted of an offer to place advertising cards, and the mere acceptance in writing of the offer by the plaintiff of the alleged contract was held void, because lacking in mutuality. A proper recital of the effect of that ruling reads:

"Where defendant merely authorized plaintiff to render certain service in the form of advertising, and such authorization was accepted by the plaintiff in writing, the contract was lacking in mutuality and was not enforceable; the plaintiff having failed in the written acceptance to obligate itself to perform any of the service set forth in the authorization."

The court stated the rule to be:

"A definite authorization may be made by one party to another to do a certain thing; but the mere acceptance of such offer, without a promise to in turn comply with the terms of that offer and to obligate the acceptor does not make a valid contract, for one is bound while the other is not. Such offer and acceptance would not constitute an enforceable contract because of lack of mutuality. 9 Cyc. 327. This is the precise situation presented by

the alleged contract in the case at bar. The so-called acceptance of the plaintiff is entirely lacking in those words which show any agreement on its part to do anything. The acceptance of the offer to pay a definite sum for the placing of the advertising cards cannot even be said to imply that the plaintiff agreed to place the advertising for paragraph 2 of the acceptance expressly reserves the right to the plaintiff to remove at any time all or any part of the advertising matter covered by the alleged contract. Under such an acceptance, the defendant would have no remedy against the plaintiff to enforce compliance with the offer, for the plaintiff has not in any manner agreed to do so."

As we find no cause alleged to which defendant need respond, we hold that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to dismiss the complaint granted, with $10 costs. Order filed.

DOWLING, P. J., and FINCH, J., concur.

PROSKAUER, J. (dissenting). I dissent, upon the ground that the agreement of September 10, 1925, by fair interpretation, constituted the plaintiff the exclusive advertising agent of the defendant. MERRELL, J., concurs.

MARION STEEL CO., Inc., v. ALDERTON DOCK YARDS, Limited. Supreme Court, Appellate Division, First Department. March 30, 1928. 1. Contracts 352(3)-Whether defendant obligated itself to perform contract within 90 days held question of fact.

Uncontradicted testimony of defendant's president, that he refused to undertake work of dismantling hull of vessel and cutting up the steel within any specified time, held to present question of fact whether defendant obligated itself to perform contract within 90 days, as respects plaintiff's right to damages for delay or to recover for conversion, and as to defendant's right to recover balance due on contract price.

2. Malicious prosecution 35(1)—Plaintiff's voluntary dismissal of action held equivalent to successful termination of action in defendant's favor.

Plaintiff's voluntary dismissal of libel proceedings, in absence of compromise or inducement offered by defendant, held tantamount to a successful termination of the action in favor of defendant.

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