of property of a certain description and was what the law terms an executory contract, and when the defendants came with an inferior article open to inspection, it became necessary for the plaintiff to take his position and when he discovered that the fumber tendered did not answer the character required by the contract there were two courses which he might adopt.

He could re use to accept the plank and thus rescind the contract and recover the money paid for freight and duties, or he could keep the lumber and rely upon the contract to recover the damages he sustained through its breach by way of counterclaim. to an action for the price. But he could not pursue both these remedies, because they were inconsistent.

Environed by such circumstances the plaintiff exercised his right of choice and declined to accept the lumber and thus rescinded the contract, and such election gave him the right to recover back the money he had advanced. Upon that theory the lumber remained the property of the defendants and the plaintiff might recover for its storage.

But the plaintiff went further in this action, and sought to recover damages for a breach of the contract, and he has recovered upon that claim, but the recovery for that item cannot be sustained.

His claim to recover back the money advanced for freight and duties rests upon the abrogation of the contract by his refusal to receive the lumber, while his claim for damages proceeds upon the affirmation and consummation of the contract, and a recovery by reason of a violation thereof.

If the lumber had been accepted by the plaintiff, the contract would have then been executed, and he could sustain no action for the recovery of the money paid for freight and duties, because that would have been a payment on account of the purchase price of the lumber according to the agreement, but having declined to accept the plank, he was in a position to sue for the money thus paid, upon the principle which justifies an action for the recovery of the purchase price of property upon the nullification of the sale, where the price has been paid by the purchaser.

After the rescission of the contract the defendants could sustain no action against the plaintiff for the price of the lumber, because it had not been accepted and still belonged to the defendants; otherwise, if it had been accepted, the defendants might sue for the price and the plaintiff could recover his damages for a breach of the contract by way of counterclaim to such action.

But now since the abrogation of the contract the plaintiff cannot recover damages for its violation, because such a claim would proceed upon the affirmance of the contract.

As, therefore, the claim of the plaintiff for damages can rest upon nothing but the contract, it has no basis for its support, and that portion of the judgment is erroneous.

The following authorities justify the views we have expressed: 2 Kent's Com. (10th ed.), 660; Sprague v. Blake, 20 Wend., 64; Hart v. Wright, 17 id., 277; Gallagher v. Waring, 9 id., 28.

N. Y. STATE REP., VOL. XXXII.

92

The judgment should, therefore, be modified, by striking therefrom the sum of $984.24 allowed for damages, and, as so modified, affirmed, without costs to either party on this appeal. BARNARD, P. J., and PRATT, J., concur.

GEORGE DINTRUFF, by Guardian, Resp't, v. THE ROCHESTER CITY & BRIGHTON RAILROAD Co., App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) NEGLIGENCE.

Evidence that a driver of a horse car, whose team ran away and injured a boy in the street, could have controlled the team but for the fact that the rear brake had been rendered useless by mischievous boys, and that such neutralization of the power of the front brake, which was usually remedied by tying down the brake, was well known to the officers of the company, and that to their knowledge this particular brake had been tied down at one time to prevent such interference, is enough to show negligence on the part of defendant.

APPEAL from judgment entered on a verdict at the Monroe circuit on the 14th day of June, 1889, and from an order denying the defendant's motion for a new trial made upon the minutes of the court.

Raines Bros., for app'lt; Walter S. Hubbell, for resp't.

MACOMBER, J.-The injuries to the plaintiff, for which this action is brought, were sustained at 8:30 o'clock in the evening of August 31, 1888, on State street, in the city of Rochester. Α presidential campaign club of the Ninth ward was marching at this time southward on State street towards the center of the town, carrying colored lamps, preceded by a band of music. Following immediately behind the torch bearers was a company of mounted men, and these in turn were followed by the residue of the club on foot. Near the corner of Jay street the procession was welcomed by the firing of Roman candles by people ahead, which caused the horses attached to the defendant's car to plunge violently and to run.

The plaintiff, a lad of nine years of age, at that time, who was with the crowd of people on the west side of the street, attempted to go across the street car tracks to the east side of the street, away from the crowd, so as to get a better view of the parade, crossing the track ahead of the band. In the meantime, the persons in the procession, apprehending injury from the horses or the car, moved away from the tracks so as to escape any collision. The horses drawing the car plunged forward, striking the boy and throwing him down, and the car wheel so lacerated his foot as to maim him for life, for which injuries the jury rendered a verdict for the sum of $2,000.

Very litle need be said of the case, so far as the same relates to the charge that the negligence of the boy contributed to the production of the injuries which he received. There was apparently credible evidence and not to say uncontroverted testimony, that the boy not only did not see the run-away team and car, but that he could not, with the exercise of reasonable care, have dis

covered their approach before the instant of the collision. There is a suggestion of testimony that in passing the tracks he did not go across at right angles, but ran for a distance along them for a space of 150 feet or thereabouts. But this evidence, as it appears in the case, even if it is not a mistake in proof-reading, is wholly inconsistent with the facts which the jury was warranted in believing to exist, namely, that the boy did not imperil his own safety by walking any considerable distance upon the railway of the defendant.

The omission of duty on the part of the defendant towards the plaintiff and others is not made in the least doubtful by the evidence. The car in question was a double end car, designed to be drawn by two horses, with both a driver and a conductor. The steps at one end thereof were removed, and the car converted into what is commonly spoken of as "bob-tail," namely, a car without a conductor, and one where the collection of fares is made by the deposit of the fare by each passenger in his own behalf into the box, or into a metallic conveyer running the whole length of the car to the box. As originally constructed, there was a brake handle at each end of the car, connecting the same with the brake, so that when one brake-handle is turned, the slack in the chain is taken up, which prevents the brake from being applied at the other end of the car. A short time before the collision, some mischievous boys, who were catching rides on the rear platform, either intentionally or thoughtlessly, turned the rear handle of the brake, so that the brake would not work; and when the driver attempted to stop the running team by applying the brake at his end of the car, he found that the same would not work, and, consequently, he was utterly powerless to control the car. Except for this, the evidence would have warranted the jury in saying that, however frightened the horses may have been by the band and by the pyrotechnics, they could have been controlled, and that no injury to pedestrians would have happened. But the brakes were not in good order.

This neutralization of the power of the front brakes was a matter well known, not only to the drivers, but to the officers of the company. It was common knowledge to all familiar with the operation of these cars that frolicsome boys might actually turn the rear brake and thus render futile any effort of the driver to control the car in an emergency. One of the usual remedies for a prevention of accidents of this description, was the tying down of the rear brake, so that intruders could not interfere with it. The evidence charges the defendant's superintendent with knowledge that this particular car had had the rear brake tied down at one time, so as to prevent mischievous interference therewith. Notice, therefore, of the dangerous condition of the apparatus for stopping the progress of the car in an emergency was brought directly home to the corporation. The public had the right to assume that the ordinary precaution well known to the company, would be taken to prevent any accident which was liable to happen by reason of the accidental or intentional derangement of the brakes.

The exception taken by the defendant's counsel to the evidence relating to the employment of metallic conveyors of the fares to the money box, in front of the car, is not well taken, for the reason, among others, that it was given upon cross-examination of the defendant's witness Brower, the superintendent of the defendant, who had given evidence designed to excuse or extenuate the failure to have a conductor upon this car.

We have examined the several exceptions taken to the charge of the learned judge at the trial, and do not find in them anything that would justify us in interfering with the verdict.

The judgment and order appealed from should be affirmed.
DWIGHT, P. J., and CORLETT, J., concur.

THE CITY OF ROCHESTER, Resp't, v. BENJAMIN SIMPSON, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. MUNICIPAL CORPORATIONS-NUISANCE-ORDINANCE.

The city of Rochester, by its charter, § 276, had power to pass laws for the "filling up, draining, cleansing, cleaning and regulating of any grounds, yards, slips or cellars within the said city, which shall be sunken, damp, foul, encumbered with filth and rubbish or unwholesome," and passed an ordinance by which the owner, etc., of a quarry, or premises heretofore used for quarrying, was compelled to cause the same to be "filled with earth even with the surface of the ground, * * * or shall cause the water therein to be drained therefrom, and said quarries or excavations kept dry and the water prevented from accumulating or standing therein, under a penalty, etc." Held, that it was not a reasonable interpretation of that ordinance that it requires every excavation or depression in the surface of lands within the city which may at any time, however remote, have been made by the quarrying of stone, whatever its present condition or use, to be filled up even with the surrounding land, nor did it forbid the use of such excavation as a fish pond fed and filled from a living source of pure water.

2. SAME.

The fact that in the hot summer months an unpleasant odor sometimes arose from the pond; that there was sometimes a green scum on a portion of its surface near the edge; that the dead bodies of cats and dogs had been taken from it and that when raised to a certain height water leached or soaked from the pond into neighboring cellars, did not necessarily bring it within the condemnation of the ordinance.

APPEAL by the defendants from a judgment of the county court of Monroe county, affirming a judgment of the municipal court of the city of Rochester.

R. E. White, for app'lt; G. D. Forsyth, for resp't.

DWIGHT, P. J.-The action was to recover a penalty imposed by an ordinance of the city of Rochester, passed October 25, 1887, in the following terms:

SEC. 4. "Every owner, occupant or lessee of any stone quarry, or premises heretofore used for quarrying stone therefrom, within the city of Rochester, shall cause the same to be filled with earth even with the surface of the ground, before any excavations are made, or shall cause the water therein to be drained therefrom, and said quarries or excavation kept dry and the water prevented from accumulating or standing therein, under a penalty of fifty

733 dollars for each offense, to be sued for and recovered from the owner, occupant or lessee thereof, severally and respectively." This ordinance was based upon the following provisions of the statute which constitutes the charter of the city of Rochester: SEC. 276. "The common council shall have power to pass and enact such by-laws and ordinances as they shall from time to time deem necessary and proper, for the filling up, draining, cleansing, cleaning and regulating of any grounds, yards, slips or cellars within the said city that shall be sunken, damp, foul, encumbered with filth and rubbish, or unwholesome."

It is manifest that both of these enactments must have reasonable interpretation and reasonable application, or they are liable to become the instruments of oppression and to violate the rights of citizens. The whole tenor of the provision of the charter shows that it was intended to provide for the prevention and abatement of nuisances injurious to the public health, and, among other things, to prevent the accumulation of pools of stagnant and impure water in sunken places within the city. The ordinance quoted, resting as it does wholly upon the authority of this provision of the charter, must be interpreted by reference thereto, and can have no force or application except within the lines and to the intent and purpose indicated by the statute.

Upon the principles thus briefly stated we are of opinion that the case presented by this appeal does not fall within the scope of the ordinance upon which this action is brought. It is not a reasonable interpretation of that ordinance that it requires every excavation or depression in the surface of lands within the city which may at any time, however remote, have been made by the quarrying of stone, whatever its present condition or use, to be filled up even with the surface of the surrounding lands; nor that it forbids that any such excavation should be utilized for an ornamental pond, or for a fish or ice pcnd, fed and filled from a living source of pure water. Such an application of the ordinance would violate the natural and constitutional right of the citizen to use and enjoy his property in his own way so long as such use interferes with no other public or private right. The People v. Marx, 99 N. Y., 386; Matter of Jacobs, 98 id., 98, 110. The provision of the statute quoted was evidently made in the interest of the public health, and the ordinance has no sanction or authority except as it tends to promote the same general purpose. Babcock v. Buffalo, 1 Sneld., Supr. Ct., 321, affirmed 56 N. Y., 268; Matter of Jacobs, supra, 112; People ex rel. Cartmill v. Rochester, 44 Hun, 169; 8 N. Y. State Rep., 291.

This action was apparently brought upon the theory of a literal construction of the ordinance in question. The complaint contains no allegation that the water in the defendant's pond was either stagnant or impure, nor that the existence of the pond was in any manner detrimental to the public health, or to public or private comfort or convenience. The allegation was merely that the land had been formerly used as a stone quarry and that it had been permitted to be and remain filled or nearly filled with water for several months. So too, on the trial, the complainant rested