contract price, or sell them as the buyer's agent and recover the difference between the contract price and the amount realized.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 941; Dec. Dig. § 340.*]

7. SALES (§ 345*)-ACTION FOR PRICE-DELIVERY-NECESSITY FOR SHOWING. At common law one could only recover for goods sold and delivered by showing actual delivery.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 958; Dec. Dig. § 345.*]

8. SALES (§ 355*)—ACTION FOR PRICE-VARIANCE.

No recovery for goods sold, but not delivered, can be had on an averment of sale and delivery.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1043; Dec. Dig. § 355.*]

9. SALES (§ 160*)-DELIVERY-ESSENTIALS.

To constitute a delivery of goods, they must at least be placed within the control of the buyer.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 375; Dec. Dig. § 160.*]

Appeal from Trial Term, Kings County.

Action by Anna Gross against Michele Ajello. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

George A. Baker, for appellant.

Jacob J. Lesser, for respondent.

MILLER, J. The plaintiff seeks to recover the purchase price of two lots of merchandise, separately contracted to be sold to the defendant. She declares on two causes of action: (1) The sale and delivery of a quantity of tomato paste; (2) the breach of an executory contract to purchase a quantity of chick peas. The evidence in support of the first cause of action tended to show the sale of 100 cases of tomato paste, to be manufactured and delivered in separate lots; that 15 cases were delivered and paid for; and that thereafter 85 cases were set aside by the plaintiff and marked for the defendant, but never actually delivered. The only evidence to show notice of readiness to deliver, or a tender of delivery, not stricken from the record, was the following testimony of the plaintiff's son:

"I telephoned him (meaning the defendant) when he would take the rest, and I never received any reply of any kind."

The evidence to establish the second cause of action tended to show an executory contract of purchase and sale of a part of a shipment, expected later to arrive at the port of New York; that, upon the arrival of such shipment, the plaintiff mailed to the defendant an order on the warehouse for the quantity of peas, agreed to be sold, and thereafter-how soon does not appear-removed them there from to her own building without notifying the defendant.

There can be no doubt that both contracts were executory. The obligation of the defendant to pay and for the plaintiff to deliver were mu'or other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tual and dependent. In the absence of delivery, the plaintiff could only recover the purchase price by showing readiness to perform and a tender of performance on his part. Dunham v. Pettee, 8 N. Y. 508; Des Arts v. Leggett, 16 N. Y. 582; Dustan v. McAndrew, 44 N. Y. 72; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190. The delivery of the order on the warehouse for the peas would have justified a recovery of the purchase price (Salmon v. Brandmeier, 104 App. Div. 69, 93 N. Y. Supp. 271; Horst v. Montauk Brewing Co., 118 App. Div. 300, 103 N. Y. Supp. 381), but for the fact that it was nullified by the removal of the peas to the plaintiff's building without notice to the defendant. In the absence of other evidence, then, to show delivery or tender, it was error to direct a verdict for the purchase price of the peas. No place of delivery of the tomato paste having been specified, the plaintiff's place of business was doubtless the place of delivery (Gray v. Walton, 107 N. Y. 254, 14 N. E. 191; Bliss Co. v. U. S. Incandescent Gas Light Co., 149 N. Y. 301, 43 N. E. 859); but merely setting aside the cases, when prepared, did not constitute a delivery, and, in view of the fact that the goods were to be manufactured and delivered in separate lots, the inquiry made by the plaintiff's son, as testified to by him, did not amount to a notice that the goods were ready for delivery, or to a tender of delivery, at least as matter of law. But, aside from the foregoing, there is still a serious obstacle to the affirmance of this judgment. The defendant rested upon the plaintiff's case, insisting that the plaintiff had failed to establish a sale and delivery as pleaded. There is no doubt that, where the vendee has defaulted on an executory contract to purchase personal property, the vendor has a choice of remedies, namely: (a) To keep the goods and sue for damages for breach of contract; (b) to hold them as bailee of the purchaser and recover the contract price; (c) to sell them as agent of the purchaser and recover the difference between the purchase price and the amount realized on such sale. Dustan v. McAndrew, supra; Mason v. Decker, supra. But the plaintiff in this case pleaded an executed, not an executory, contract; and the substantive rules of law hereinbefore referred to have nothing to do with the question of pleading. The plaintiff can only recover the purchase price on the theory that the goods belong to the defendant; but this judgment conclusively establishes the delivery, and could be pleaded as an estoppel in a suit to recover possession of them. At common law the plaintiff could only recover on a declaration for goods sold and delivered by showing an actual delivery. Outwater v. Dodge, 7 Cow. 85. In the cases hereinbefore cited, which permitted a recovery of the purchase price, though there was no delivery, no question of pleading was involved; and no reason can be suggested for allowing a recovery for goods sold, but not delivered, on an averment of a sale and delivery, where the point is properly taken on the trial. To constitute a delivery, the goods must at least be placed in the power of the vendee.

The case of Butler Bros. v. Hirzel, 87 App. Div. 462, 84 N. Y. Supp. 693, affirmed 181 N. Y. 520, 73 N. E. 1120, upon first examination may seem opposed to this view; but it will be seen that in that case the

tablished, but, in view of certain averments of the complaint and of the course of the trial, deemed the variance immaterial, as it did not appear that the defendant was misled. In this case the defendant took the point and rested upon it. He had alleged in his answer a rescission of the contracts; and, on a motion for a new trial on the ground of newly discovered evidence, the appeal from the order denying which was argued herewith, he presented affidavits relative to that issue which would have justified the granting of a new trial, but for the fact that his counsel intentionally refrained from tendering on the trial the issue to which the alleged newly discovered evidence related. That fact, however, emphasizes the right of the defendant to rely on this appeal upon the point which he distinctly made and stood upon at the trial.

The judgment must be reversed.

Judgment reversed, and new trial ordered; costs to abide the event. All concur.

CLINTON v. MUNSON S. S. LINE.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. MASTER AND SERVANT (§ 286*)-INJURY TO SERVANT-NEGLIGENCE-EVIDENCE.

Evidence of negligence, in an action by an employé of defendant for injury from falling into an uncovered coal hole while unloading defendant's steamship between-decks, where it was unlighted, held sufficient to go to the jury.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 286.*] 2. MASTER AND SERVANT (§ 279*)—INJURY TO SERVANT-NEGLIGENCE OF FELLOW SERVANT.

Evidence in an action for injury to a member of a gang of men employed by a steamship company in unloading its steamer held insufficient to authorize a finding that the cover of the coal hole between-decks into which he fell was taken and left off by fellow servants.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 279.*]

On reargument of appeal. Former opinion (113 N. Y. Supp. 1129) reversed, and judgment affirmed.

See, also, 114 N. Y. Supp. 1122.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Knowlton Durham, for appellant.

Robert Stewart (Ralph G. Barclay, on the brief), for respondent.

GAYNOR, J. The plaintiff was of a gang of men employed by the defendant in unloading the defendant's steamship of a cargo of sugar in bags. The plaintiff's duties were to sew up any of the bags that were ripped, and also to go between decks after the bags were out of a compartment and sweep up and bag any loose sugar from the bags. He went down to a compartment which had just been emptied by his fellow workers and as he went about sweeping up stepped into an open

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indeses

coal hole and was hurt. There was a coal hole in the deck above, namely, the top deck, and immediately over the one he fell into. The cover was on the top one, but the cover of the one he fell into lay to one side of it. These coal holes were for the purpose of letting coal down to the bunkers. They were not used in discharging the cargo. The men engaged in that work had nothing to do with them, and there is no evidence that they removed the cover from its socket or coping. They had no occasion for doing so. The evidence showed that the compartment where the plaintiff was hurt was quite dark. The men worked there without lights, but it was an obscure place. It was not light enough to read. The negligence alleged was the uncovered coal hole, and insufficient light to see it. The case was unquestionably made out for the jury. But the defendant claims that the learned trial judge erred in refusing to charge that if the cover "was taken and left off the hole by the neglect of the co-employés of the plaintiff, the verdict must be for the defendant." There was no evidence to justify such a finding. On the contrary, there was evidence tending to show that on the outward voyage the hole was always choked with coal, the bunkers being filled, and extra coal being stored on the freight deck, i. e., in the said compartment.

The judgment should be affirmed.

Judgment and orders affirmed on reargument, with costs. All concur.

VILLONE v. FEINSTEIN et al.

(Supreme Court, Appellate Division, Second Department.

April 23, 1909.)

1. VENDOR AND PURCHASER (§ 337*)—REMEDIES OF PURCHASER-LIEN For PurCHASE MONEY.

A vendee would have an equitable lien on the land for the amount paid on the contract on failure to convey, but it would not affect superior rights existing at the time of the contract.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 989; Dec. Dig. § 337.*]

2. DOWER (§ 27*)-INCHOATE INTEREST-RIGHTS OF WIFE-SALE SUBJECT TO DOWER.

A vendee's equitable lien for the amount paid on the contract would not affect the inchoate right of dower of the vendor's widow, where she did not join in the contract, so that a foreclosure to satisfy the ven dee's lien would be subject to her dower, unless it was satisfied out of the proceeds of the property.

[Ed. Note. For other cases, see Dower, Dec. Dig. § 27.*]

3. VENDOR AND PURCHASER (§ 337*)-REMEDIES OF PURCHASER-LIEN FOR PURCHASE MONEY-ACTIONS TO ENFORCE-JUDGMENT.

In an action by a vendee against the vendor's widow and his heirs for the specific performance of a contract of sale signed by the vendee alone, and to establish a lien for the amount paid under the contract, it was error to direct a personal judgment against the widow and heirs for any deficiency upon the sale of the land upon foreclosure, as such deficiency must be satisfied out of the vendor's estate.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. { 337.*]

Appeal from Special Term, Kings County.

Action by Nicola Villone against Jennie Feinstein, individually and as administratrix of the estate of Benjamin Feinstein, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed as modified.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Otto Greenberger (Barnett E. Kopelman, on the brief), for appellants.

Nathan Ballin, for respondent.

MILLER, J. This action was brought for the specific performance of a contract of purchase and sale of real property, or in the alternative for damages. On the trial the plaintiff was permitted to amend the complaint so as to ask that he be decreed to have an equitable lien for the amount paid pursuant to the contract, and for the foreclosure thereof. The action is brought against the vendor's widow, both individually and as administratrix of his estate, and his heirs at law, infants. The widow was not a party to the contract. The judgment directs the foreclosure of the plaintiff's lien and the sale of the premises to satisfy it, and a judgment against all the defendants individually for any deficiency.

There can be no doubt that the plaintiff was entitled to an equitable lien for the amount paid, on the contract (Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937); but, as the vendor's wife did not join in the contract, her inchoate right of dower was not affected by it. She never agreed to release that right. She could not have been compelled to join her husband in a deed, and she cannot be deprived of a right consummate, which, when inchoate, she could not have been compelled to release. While the vendee has an equitable lien for the amount paid on the contract, that lien cannot affect superior rights existing at the time the contract was made. Unless the widow's dower is admeasured and satisfied out of the proceeds of the sale, the premises must be sold subject to it. It was also error to direct a personal judgment against the widow and the heirs at law for any deficiency. The respondent is unable to assign any reason for such a judgment, and manifestly none exists. The plaintiff must look to his vendor's estate for the satisfaction of any deficiency judgment.

The judgment should be modified accordingly, and, as thus modified, affirmed, without costs. All concur. Settle order before MILLER, J.

JACKSON v. ERKINS et al.

(Supreme Court, Appellate Division, First Department.

April 16, 1909.) 1. LANDLORD AND TENANT (§ 79*)—ASSIGNMENT OF LEASE AS SECURITY-RIGHTS OF ASSIGNEE-RIGHTS BEFORE DEFAULT.

Where defendant secured a loan from plaintiff by assigning to her a lease to defendant of certain premises and subleases thereon, and made plaintiff his attorney to collect the rents due thereunder and maintain sum*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 116 N.Y.S.-25