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App. Div.]

Third Department, January, 1906.

question of fact for the determination of the court, and the finding that he had no such knowledge is supported by sufficient evidence.

The court has also found in great detail the respects in which the building did not conform in workmanship and materiais furnished with the contract, and in addition thereto has found "that substantial, material and structural defects pervade the whole work and that said defects were intentional on the part of the plaintiff." These findings appear to be sustained by ample testimony.

The plaintiff having sought to recover upon the allegation of full performance on his part, the burden was upon him to show that to entitle him to the aid of the court in compelling performance by the other party. He failed to show that, and if the defendant Rosoff had moved to dismiss the complaint at the close of plaintiff's proof it would have been proper to have granted the motion upon that ground. When it affirmatively appeared in the defendant's evidence that the plaintiff had failed in many substantial respects to perform his contract the complaint was properly dismissed upon the merits. Authority for so plain a proposition is hardly deemed essential. Reference to but one, therefore, will be made.

Chancellor KENT in Benedict v. Lynch (1 Johns. Ch. 370) says: "It may, then, be laid down as an acknowledged rule in courts of equity (and so the rule is considered in the elementary treatises on this subject) (Newland on Contracts, 242; Sug. L. of Vend. 3d Lond. edit. 268), that where the party who applies for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay; and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance."

The appellant also contends that the court improperly denied him leave to amend his complaint, and he argues that such amendment has deprived him of any recovery in the action, even for the value of the work performed and materials furnished, on the theory that he had not fully performed. The application to amend was made at the close of all the testimony, and the proposed amendment if it had been allowed by the court would not have aided the plaintiff, for

Third Department, January, 1906.

[Vol. 111. he did not seek by the amendment to change the action from one for specific performance to one to enable him to recover as for a quantum meruit. Nor on the trial had the plaintiff offered any evidence as to the value of the work done or materials furnished by him in or upon the building, or tending to show such value, and if he deemed himself entitled to recover upon such quantum meruit it was incumbent upon him to produce such testimony. (Spence v. Ilam, 163 N. Y. 220; Norton v. U. S. Wood Preserv ing Co., 89 App. Div. 237, 241.) So that if the amendment had been allowed there could have been no recovery, under the evidence, upon the theory now insisted upon by the appellant. Nor indeed would such a recovery have been permissible under the complaint as interposed, or under the proposed amended complaint.

We have examined the numerous exceptions to the rulings of the court upon the admission and exclusion of evidence and find none that justifies a reversal.

The question is not presented, and we are not required to decide on this appeal, whether the judgment dismissing the complaint upon the merits would be a bar to another action upon the part of the plaintiff to recover from the defendant Rosoff for the value of the work performed and the materials furnished by him for the defendant Rosoff.

The judgment must be affirmed, with costs.

Judgment unanimously affirmed, with costs.

HARRY FANCHER, Respondent, v. FONDA, JOHNSTOWN AND GLOVERSVILLE RAILROAD COMPANY, Appellant.

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Third Department, January 8, 1906.

injury to plaintiff by collision with trolley car while driving across tracks - contributory negligence.

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The plaintiff was injured by a collision with a trolley car running at forty-five miles per hour while attempting to drive across the tracks. The highway crossed the tracks in a diagonal direction and the plaintiff was required to look over his right shoulder to see cars coming from behind. He testified that while his horses were on the north track he looked and saw a car coming from

App. Div.]

Third Department, January, 1906.

behind 200 feet away on the south track. His horses were going slowly. He testified that he thought he could get across.

Held, that the plaintiff was guilty of contributory negligence, for, being in a safe place when he first saw the car approaching, it was his duty to have stopped.

APPEAL by the defendant, the Fonda, Johnstown and Gloversville Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 27th day of June, 1905, upon the verdict of a jury for $125, and also from an order entered in said clerk's office on the 30th day of June, 1905, denying the defendant's motion for a new trial made upon the minutes.

Nisbet & Hanson, for the appellant.

H. V. Borst and Harvey Book, for the respondent.

CHESTER, J.:

The plaintiff was injured by a trolley car operated by the defendant, colliding with a wagon on which he was riding while he was. attempting to cross the tracks of the defendant at a highway crossing at grade, a short distance easterly of the village of Cranesville. The defendant operates a double-track trolley road froin the city of Amsterdam to the city of Schenectady on a private right of way. The Mohawk turnpike, upon which the plaintiff was driving, runs nearly parallel to the tracks of the defendant and the turnpike crosses the railway tracks obliquely. The turnpike and the railway, at the point in question, run easterly and westerly, the west-bound track of the railway is the northerly track and the east-bound the southerly. The plaintiff was driving a team with a load of sand on the turnpike, going easterly. The car which collided with him was proceeding easterly on the southerly track, which was farthest removed from the plaintiff as he approached the crossing. It was a limited car running at the rate of about forty-five miles an hour, and was not scheduled to stop at Cranesville. In order to see an approaching car plaintiff had to look behind him, except when he came to that point in the highway where it turned obliquely to cross the railway tracks, where the view was over his right shoulder. The accident happened on the thirtieth day of August, about a quarter to five in the afternoon, when it was broad daylight. The plaintiff testified: "When I got within about 200 feet of the crossing I

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Third Department, January, 1906.

(Vol. 111. turned around and looked to see if there was anything coming and there was nothing coming.

I looked west again when within about 20 feet of the railroad track and didn't see anything; then I could see up the railroad track about 1,000 feet or more. My team was in motion all the time until we were struck, kind of a slow gait. From this 20 feet where I looked I kept driving riglit along over the track, and when I was on the track I looked around and saw the car right on to me, within 200 feet. I was then on the track; the front wheels were on the north track; the horses were partly on the east-bound track.” On cross-examination he said : “I first looked for the car when I was about 200 feet from the crossing. I turned around and looked back up the track as far as I could look. I saw nothing and heard nothing. I next looked at about 20 feet from the crossing and when the heads of the horses were about 10 feet from the crossing, and saw nothing. I looked again after I was on the track when the horses and front of the wagon were upon the north track. That is the last time I looked, when the horses were on the north track. That is the west bound track. As I looked I saw a car coming on the other track. It was cast of the whistling post. That is the last look I took.

Q. IIow far away was the car? A. About 200 feet. Q. What did you do? A. I tried to hurry the horses up to get across. Q. And you failed to get across and the car struck the hind wheel? A. Yes, sir.

Q. Now, why on earti didn't you stop when you saw that car ? A. I was thinking I had lots of time to get out of the way. Q. This is the reason; and it turned out you didn't have quite time enough? A. Yes. Q. As you looked you felt you could pass ahead of the car safely? A. I thought I could by their slowing down anyway."

If, as the plaintiff states, when he saw the car approaching at a distance of 200 feet away, his horses were on the north track, lie was then in a place of safety and he should have stopped. Ile could easily have done so, for liis horses were going slowly, on a slightly ascending grade, and were not restive or uncontrollable. Nor was lie confronted with a double peril so as to be excusable for a mistake of judgment when he was in imminent danger. lle apparently took his chances and lost.

It is true that the plaintiff also testified that when he saw the car

a

App. Div.]

Third Department, January, 1906. 200 feet away “the horses were close to the other track; their heads were so close to it they would get hit,” but when asked how far they were from the other track, he replied: "I don't know," and when asked, “where was your body then?” he replied: “Over the north rail of the north track.” His counsel argues that this reply was made by the witness inadvertently under the stress, and excitement of a cross-examination and that what he meant to say was that he was over the south rail of the north track. The evidence of the witness on his cross-examination cannot all be reconciled with that given upon his direct. His effort in his testimony undoubtedly was to place himself in a position of extreme danger just before or at the time when he first saw the approaching car. The distance between the rails of the two tracks at the point in question is eight and one-half feet and the gange of each track is about five feet, so that in passing over the crossing at right angles one would have to cover a distance of eighteen and one-half feet. But the highway crosses the tracks at this point obliquely and in following the regular course of the highway the distance in crossing is made greater and is thirty-four or thirty-five feet from the north rail of the north track to the south rail of the south track. This being the situation it would appear that even if it should be conceded that the plaintiff was on the south rail of the north track instead of on the north rail of the north track as he testified, with the approaching car 200 feet away, he could even then, if he had been at all solicitous for his welfare, have stopped or backed liis team in time to have saved a collision. If, however, we take the plaintiff's statement that when he saw the car his horses' heads were so near to the east-bound track that they would get hit, as true, which cannot be harmonized with much of his other testimony to the contrary, it is nevertheless not seen how he can save his verdict, for the reason that he could not have got himself in that position except by failing to exercise ordinary care and caution. The last time he looked, according to his testimony, before he was on the tracks, was when he was twenty feet distant from the northerly track. Why he did not see the rapidly approaching car at that point is not apparent, for the car must then have been in full view, and he had an unobstructed view of the tracks for a sufficient

a distance to have seen it. Knowing, as he did, that the defendant

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