[Vol. 194. First Department, December, 1920. the child to come upon the track was held not to be the proximate cause of the injury. It was stated in that case: "Neglect on the part of the person in charge of the engine to use ordinary care to avoid injuring a person on the track, is, in contemplation of law, equivalent to intentional mischief." But that must be taken in connection with the fact that the child upon the track was only two and a half years of age and not capable of exercising care. In Remer v. L. I. R. R. Co. (36 Hun, 253) a nonsuit had been granted and it was held that the question of the defendant's negligence and the deceased's contributory negligence should have been submitted to the jury. In Mallard v. Ninth Avenue R. Co. (7 N. Y. Supp. 666) a nonsuit had been granted on the ground that the defendant had not been guilty of negligence. This the Common Pleas reversed on the ground that there was a question for the jury. The person injured was between nine and ten years of age and ran up to within two feet of the railroad track, which the court held was in a place of danger. The court in that case said: "Had an adult done this, it is probable that he would not be permitted to recover damages for the injury that ensued, as his conduct might be deemed reckless in the extreme. It is possible that the deceased was negligent in so acting. If she were, and that negligence contributed to the accident, a nonsuit was proper. In Huerzeler v. Central, etc., R. Co. (1 Misc. Rep. 136) it was held that the negligence of the defendant was the sole proximate cause of the injury. In that case reliance is placed upon the case of Grand Trunk Railway Company v. Ives (144 U. S. 408). In the Grand Trunk case the court below had charged the jury that they were to determine the contributory negligence of the plaintiff's intestate, and that this contributory negligence would defeat the action. In the opinion of the court it was said: "These instructions are so full and complete and are in such entire accord with the rules of law applicable to cases of this character, that no fault whatever can be found with them." It was there contended that the contributory negligence should be found as matter of law, which contention the court rejected. In the case of Gray v. Weir (113 App. Div. 479) the plaintiff, while alighting from a train, accidentally fell. An express truck drawn by the defendant's employee at a rapid walk App. Div.] First Department, December, 1920. was then about three feet away, and owing to a failure to steer the truck so as to avoid the plaintiff, she was struck and injured. The court directed a verdict for the defendant. Held, that assuming the initial negligence of the plaintiff in falling from the train, the question as to whether or not the defendant was negligent in subsequently running the plaintiff down should have been left to the jury, and further, that as the fall of the plaintiff and the injury by the defendant were separated in time, they did not constitute an indivisible transaction so that as a matter of law the fall of the plaintiff must be considered the proximate cause of the injury. That question was for the jury. There was no question there raised as to the negligence of the plaintiff after she had fallen. In Feldman v. N. Y. C. & H. R. R. R. Co. (142 App. Div. 339) a woman was killed while walking upon a railroad bridge. It was held that recovery could be had, "although the decedent, who entered upon the bridge before the train was in sight, be guilty of contributory negligence as a matter of law in trespassing thereon, if the engineer on discovering her whereabouts, drove his engine ahead regardless of consequences.' The question was not raised as to her negligence after she was upon the bridge. Other New York cases were cited in which it is held that notwithstanding prior negligence of the plaintiff in placing himself in a position of danger, it became the duty of a defendant to avoid the injury if possible. This law is not questioned. Those cases do not hold, however, if after the initial negligence, the plaintiff were guilty of further negligence which was one of the proximate concurrent causes of the injury, that the plaintiff could recover. Recurring then to the facts in this case, if this child could have been seen upon the track in sufficient time to have stopped this car, and the motorman maliciously and wantonly ran him down and caused his injuries, the boy's contributory negligence would be no defense to such an action. But such a cause of action was not pleaded, nor was such a question submitted to the jury. Upon streets, however, where the cars run frequently, it might well be held to be a question for the jury as to whether this plaintiff in walking south upon the track, from which a car would approach him from behind, First Department, December, 1920. [Vol. 194. for twenty-five or thirty feet, and giving no heed to his possible danger, was guilty of negligence. Whether or not this child was guilty of negligence in running upon the track, if he were guilty of negligence in remaining upon the track without giving heed to his danger, and that negligence was a proximate concurrent cause of his injury, the plaintiff cannot recover. Upon the plaintiff's own showing he could not have been held as a matter of law free from negligence. Upon the evidence of these witnesses upon which he bases his claim, to make applicable the doctrine of last clear chance, it is doubtful if any negligence could have been predicated upon the boy's running upon the track, so that if the accident happened in the way claimed by these witnesses, the only negligence of the plaintiff would probably be in his walking down the track where the cars must approach him from behind, without taking heed of the danger, and watching to see that he was not run down. If such negligence be found by the jury, it would, in my judgment, be a complete answer to his claim for damages for his injury, and the trial judge, therefore, was right in charging as requested by defendant's counsel, and the judgment should be affirmed. LAUGHLIN, J., concurs. In each case: Judgment and order reversed and new trial ordered, with costs to appellant to abide event. CARL HECHINGER, Respondent, v. JUAN ULACIA and RAMON ULACIA, Appellants. Sales First Department, December 17, 1920. agreement as to sale to be followed by definitive contract and guaranty of payment - action under said agreement for refusal to deliver goods defense that said agreement was merely a memorandum of contract to be executed admissibility of parol evidence to show such defense. Where the answer in an action to recover for the defendants' refusal to deliver goods pursuant to an alleged contract of sale asserts that the contract alleged by the plaintiff was merely a provisional agreement App. Div.] First Department, December, 1920. which was to be superseded by a definitive contract which, among other things, required the buyer to guarantee payment for the goods by a bank approved by the defendants and that the buyer refused to furnish such guaranty and refused to sign the definitive contract agreed upon after due demand, it was error for the court to exclude evidence tending to establish said defenses upon the ground that it tended to vary the terms of a written contract. Evidence to establish said defenses did not tend to vary the terms of the contract but on the contrary tended to show that the agreement alleged in the complaint was not mutually understood to be the contract between the parties, but was merely a temporary memorandum of the contract to be executed. APPEAL by the defendants, Juan Ulacia and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 4th day of February, 1920, denying defendants' motion to set aside the verdict and for a new trial made upon the minutes. S. Hanford of counsel [William Hauser with him on the brief], for the appellants. Edgar J. Bernheimer of counsel [Hollander & Bernheimer, attorneys], for the respondent. PAGE, J.: The action was to recover damages for the defendants' refusal to deliver to the plaintiff's assignor a quantity of molasses pursuant to the terms of an alleged contract, a copy of which was annexed to the complaint. The answer set up as one defense that the said alleged contract was understood by and between the parties thereto to be only a temporary or provisional agreement or memorandum of the transactions had between the parties thereto, and was to be supplanted by a definitive contract which was to embody in detail the agreements made, which was to contain, among other things, a guaranty of the payment for the molasses, contemplated to be purchased under said agreement, by a bank approved by the defendants; that the plaintiff's assignor failed, refused and neglected to furnish the guaranty and also failed, refused First Department, December, 1920. [Vol. 194. and neglected to sign the definitive contract agreed upon; that thereafter a notarial demand, pursuant to the Law Merchant and the Civil Code in force and effect in Havana, Cuba, was made upon the plaintiff's assignor that he furnish to defendants the guaranty of payment and the execution of the definitive contract agreed upon, or in event of the failure to provide such guaranty and to execute the definitive contract, that the provisional contract theretofore existing between the parties would be considered and treated as void and of no further force and effect and that the defendants would be at liberty to dispose of the merchandise as to them seemed best; that the plaintiff failed, refused and neglected to comply with the said notarial demand, and that by reason thereof the temporary and provisional contract became void. Upon the trial the court excluded all evidence tending to establish this defense, upon the ground that it tended to vary the terms of a written contract. This evidence consisted of a letter written by the agent of the plaintiff's assignor, who signed the contract in suit, inclosing the same for defendants' signature, in which he refers to it as a provisional contract, and states "the definitive contracts will be signed within a few days in substitution of those which I hereby enclose, by you and by my said principal, which contract will show all the known conditions which are required by the same and which are stipulated in its contracts by the Cuba Distilling Company of this City [Havana]. At the same time the contracts will be guaranteed by Bank signature as I offered you;" and also of the correspondence between the parties as to the obtaining of the guaranty of a bank and various offerings of the plaintiff's assignor in lieu of such guaranty; and of correspondence and depositions relating to the preparation of the definitive contract, the failure of the plaintiff's assignor to sign the same and his refusal on demand to give the bank guaranty or sign the definitive contract. This evidence did not tend to vary the terms of a contract entered into between the parties, but did tend to show that the instrument, a copy of which was annexed to the complaint, was not understood by either party to be their contract but was merely a preliminary temporary memorandum of a contract which was later to be executed by the parties, the |