First Department, March, 1922. [Vol. 200 APPEAL by the plaintiff, Julia Mabs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of May, 1921, upon the dismissal of the complaint by direction of the court at the close of the entire case. Cadwalader, Wickersham & Taft [Walbridge S. Taft of counsel], for the appellant. William Butler [George F. Hickey of counsel], for the respondent. LAUGHLIN, J.: This action was brought to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant's chauffeur in driving its truck against her in a public street before she reached a place of safety after alighting from a street car. The plaintiff testified that on the afternoon of June 5, 1919, she and her sister-in-law and niece, three and a half years of age, were passengers on an east-bound street car on Thirty-fourth street, borough of Manhattan, New York, and when the car stopped westerly of Fifth avenue opposite the Waldorf Hotel, evidently at or about the usual stopping place, they proceeded to alight from the rear platform, and she stepped off onto the pavement first and immediately turned around, and standing with her left foot on the pavement and facing the car, placed her right foot on the step and took hold of the grab handle of the car with one hand and was in the act of assisting the child from the platform of the car to the street, when she was hit on her left ankle; that she immediately turned around to the right and saw opposite her shoulder a motor truck with the defendant's name on it passing easterly; that the motor truck also struck her left arm and side, causing great pain, and she was assisted to the sidewalk and placed in a chair, and her shoe, which was a low pump, was removed and the heel of the shoe had been completely taken off by the contact of the truck and her dress was torn, and the left side of her heel was cut open, and the wound continued to discharge for a long time; that the chauffeur who was driving the truck was brought to her immediately after the accident and she recognized him in court; that she was unable to use her left foot and was taken home in a taxicab and summoned a doctor and was confined to the house six or eight weeks, and was unable to use her left leg during that time, and also had difficulty, which continued down to the time of the trial, with her left ankle, and suffered pain in her arm and left side for about a week; that she did not see the truck until she was hit, and did not remember whether or not she looked either way before stepping off the car; that this was the App. Div. 75] First Department, March, 1922. only truck she saw there; and that she did not see the truck hit her or know what part of it came in contact with her, but that she inferred that the truck ran over her. The plaintiff's sister-inlaw testified that she was giving her attention to her child and did not observe the truck, but that the plaintiff, while standing with her left foot on the street and right foot on the step of the car and assisting the child from the car, turned around and exclaimed, "Oh, my foot; run for Park & Tilford's automobile!" and that the witness ran after the truck, and someone else followed it and the driver came back. Another witness called by the plaintiff testified, in substance, that she came out of the door of the Waldorf nearest Fifth avenue onto the sidewalk of Thirty-fourth street, and saw an east-bound street car standing still about opposite where she was, and saw the motor truck pass rapidly between her and the street car, and saw plaintiff approaching the sidewalk, assisted by her sister-in-law, and she stepped forward to offer her assistance to the plaintiff, and gave her name and address to a police officer who came shortly thereafter, and that the defendant's chauffeur gave her his name, and she also gave that to the police officer; that at the time she left the hotel there were horsecabs standing along the southerly curb of Thirty-fourth street opposite the street car. It was shown that there was a public cab stand for horsecabs to the east of said entrance to the hotel and to the west of the westerly entrance thereto, and that the said easterly door of the hotel was about sixty or seventy feet from Fifth avenue, and that the distance from the southerly rail of the street railway track to the curb was eighteen and eight-tenths feet. The trial court was of opinion that the evidence was insufficient to warrant the jury in finding that the plaintiff's injuries were inflicted by the defendant's motor truck. The material evidence on that point has been stated. Some of it tends directly to show that the truck came in contact with the plaintiff, and all of it warrants an inference to that effect, and, therefore, the jury might have so found. (Chisholm v. State, 141 N. Y. 246; Hart v. Hudson River Bridge Co., 80 id. 622; Miller v. Uvalde Asphalt Paving Co., 134 App. Div. 212; Inglese v. N. Y., N. H. & H. R. R. Co., 133 id. 198; Brand v. Borden's Condensed Milk Co., 89 id. 188; Smith v. Brooklyn Heights R. R. Co., 82 id. 531.) The evidence also presented questions of fact as to the defendant's negligence and plaintiff's freedom from contributory negligence. Subdivision 3 of section 17 of chapter 24 of the Code of Ordinances prohibits motor vehicles from passing or approaching within eight feet of a street car which has been stopped for the purpose of receiving or discharging passengers so long as the street car nas First Department, March, 1922. [Vol. 200 stopped and remains standing for that purpose. The ordinance, of course, did not relieve the plaintiff from the duty of ordinary care for her own safety. But her conduct is to be judged in the light of the ordinance, which she is presumed to have known, and it cannot be said as matter of law that, in the circumstances, she was guilty of contributory negligence in failing to discover the approach of the defendant's motor truck, which manifestly was driven in violation of the ordinance; and such violation, if not in these circumstances negligence as matter of law (See Martin v. Herzog, 228 N. Y. 164; Schafer v. Rose-Gorman-Rose, Inc., 192 App. Div. 860), was, at least, evidence which would have warranted the jury in finding that the defendant was negligent. (Berckhemer v. Empire Carrying Corp., 172 App. Div. 866; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Massoth v. D. & H. C. Co., 64 id. 524.) It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. CLARKE, P. J., DOWLING, PAGE and MERRELL, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. EDWIN K. BREADY, Doing Business under the Name and Style of GIRARD WORSTED Co., Respondent, v. B. A. WECHSLER Co., INC., Appellant. Sales First Department, March 3, 1922. - action for purchase price of goods evidence of appropriation of goods to contract by seller with consent of buyer not admissible under complaint alleging sale and delivery — appropriate allegations for complaint in action for purchase price based on appropriation of goods to contract by seller with consent of buyer - tender of delivery and refusal to accept not equivalent to actual delivery and does not authorize recovery of purchase price under Personal Property Law, § 132. In an action for the purchase price of goods, under a contract which provided for delivery at a particular place, wherein the complaint alleges sale and delivery, but the goods were not actually delivered, it is reversible error to admit, over defendant's objection that the evidence was not within the pleadings, evidence offered by plaintiff to the effect that the goods were set aside by plaintiff at its place of business, and there retained at the request of defendant on its representation that it was not ready to receive them. It seems, that if plaintiff had alleged that the goods, in a deliverable state, had been unconditionally appropriated to the contract, with defendant's assent, a recovery might be sustained under subdivision 1 of rule 4 of section 100 of the Personal Property Law. It seems, that a tender of delivery and refusal to accept the goods would not be equivalent to an actual delivery as alleged, nor would it authorize a recovery of the purchase price under section 132 of the Personal Property Law. APPEAL by the defendant, B. A. Wechsler Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the App. Div. 78] First Department, March, 1922. office of the clerk of the county of New York on the 11th day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk's office on the 31st day of March, 1921, denying defendant's motion for a new trial made upon the minutes. William R. Page, for the appellant. Campbell, Flaherty, Turner & Strouse [Charles J. McDermott of counsel; Lazarus Goldstone with him on the brief], for the respondent. LAUGHLIN, J.: The complaint alleged a sale and delivery of goods to the defendant at the city of New York between the 3d and 23d of March, 1920; that the goods were of the fair and reasonable value of $4,489.62, and defendant promised and agreed to pay that amount therefor, but, although demand has been duly made, it has failed to pay any part thereof. Defendant put in issue the material allegations of the complaint and pleaded four separate defenses. One of the defenses consists of a plea of the Statute of Frauds. Another was a plea that the plaintiff was not the real party in interest. The others are predicated on breaches of warranty and of a contract alleged to have been made between the parties on or about the 10th of December, 1919, by which the plaintiff agreed to sell to the defendant certain goods, which defendant alleges are the goods mentioned in the complaint, and with respect thereto it is alleged that owing to the plaintiff's failure to perform the contract, defendant rescinded and offered to return part of the goods delivered under the contract and refused to accept any further deliveries of goods thereunder and that there was an accord and satisfaction. It developed on the trial that the goods, the purchase price of which the plaintiff seeks to recover, were part of the goods covered by a contract in writing between the parties bearing date December 10, 1919, as alleged by the defendant. This eliminated the defenses of the Statute of Frauds and that the plaintiff was not the real party in interest. In support of the general allegations of the complaint with respect to the sale and delivery of the goods, the plaintiff offered the contract of December 10, 1919, in evidence. It was for the sale and delivery of twenty-five pieces of Bolivia goods of four colors. The purchase price was merely stated to be seven dollars. The contract does not state the number of yards of goods in each piece. It was assumed on the trial that the designated purchase price was per yard. Although the contract was for the sale of twenty-five pieces of goods, it was stated by counsel for the plaintiff on the trial, and acquiesced in, that it was only intended to cover the sale of twenty-four pieces. The evidence shows that twelve pieces of the goods were actually delivered, First Department, March, 1922. [Vol. 200 accepted and paid for. The recovery was on the basis of seven dollars per yard for twelve pieces, which are still in the possession of the plaintiff, and neither delivery nor tender of delivery thereof was shown. Although actual delivery was alleged, plaintiff, instead of showing delivery, was permitted, over defendant's objection and exception duly taken that it was not within the issues since the action was for goods not only sold but actually delivered, to show that the goods were set aside by the plaintiff, at its place of business and there retained at the request of the defendant and on its representation that it was not ready to receive them. It was not even shown that the goods so set apart were of the description of the goods embraced in the contract, but no objection was taken presenting that precise point and, therefore, perhaps it may be said that it was assumed that they were of such description. The record indicates that the learned trial court was in doubt as to whether the complaint sufficiently showed that the parties agreed with respect to the value of the goods; and on that point an amendment was allowed to conform to the evidence which then consisted of the contract showing the agreed price of the goods as already stated. Defendant promptly interposed the objection and saved the point throughout the trial that since the complaint was for goods both sold and delivered and contained no appropriate allegation upon which it could be claimed that the title to the goods had passed without delivery, there could be no recovery without proof of actual delivery. The uncontroverted evidence shows that the defendant claimed that the twelve pieces of goods that were delivered under the contract were not of the quality required thereby, and on that ground before paying therefor sought a cancellation of the contract with respect to the sale and delivery of the remaining pieces; but that the plaintiff insisted that the defendant take the remainder of the goods. Representatives of the parties then met with a view to adjusting the controversy. The evidence on the part of the plaintiff is to the effect that at the conference the defendant merely claimed that it was not convenient for it to receive any more of the goods at that time, and at defendant's request he set apart and held for it at his place of business the remaining twelve pieces of the goods. The evidence on the part of the defendant with respect to that interview is to the effect that it was agreed that it should waive its objections to the goods theretofore delivered and pay therefor and that the contract with respect to the undelivered goods should be canceled. The issue of fact depending upon the agreement arrived at between the parties as the result of these negotiations was submitted to the jury. The verdict indicates that they found that the agreement |