(178 N.Y.S.)

The operation of raising the bridge changes its plane from a level through inclines of various degrees toward a perpendicular, and to a stage which permits the passage of boats; the floor or deck of the bridge slipping down toward north and toward the east in increasing degrees as the process of raising the bridge is continued.

This bridge, because of its type, its position in and with reference to the street, and the manner of its operation, constituted a very dangerous condition, requiring of the state great care in guarding against accidents to travelers on the street. As originally designed, the bridge was to be equipped with gates of the ordinary railroad crossing type, and standards upon which to hang such gates had been erected at both ends of the bridge; but no gates had been installed, because it had been found that their operation would be interfered with by the trolley wires of the street surface railroad whose tracks extended through Salina street and across the bridge.

To warn travelers in the street that the bridge was about to be raised, the state had installed an electric bell and a gong, both operated from the bridge tender's cabin-the former by closing a switch by means of a lever, after which the bell rings continuously until the switch is opened again; the latter by pulling a rope attached to the hammer of the gong. The state also employed flagmen, whose duty it was to guard the approaches to the bridge and to warn travelers in the street when the bridge was about to be raised.

On the evening of August 12, 1916, between the hours of 7 and 8 o'clock, claimants were riding south on North Salina street in an automobile driven by claimant Lillian M. Drennan; claimants Thomas C. Drennan and Thomas McDonald being seated in the rear seat. The automobile was driven upon and over the bridge just as it was being raised to permit the passage of a boat on the canal, and, while the southerly or southwesterly end of the bridge was elevated a short distance from the level of the street, the automobile ran off the elevated end of the bridge and tipped over on its side, injuring the claimants.

It is claimed on behalf of the claimants that the state was negligent in failing to guard the approach to the bridge, and in failing to give suitable warning that the bridge was about to be raised, and also in that the flagman or watchman at the north end of the bridge actually invited them to enter upon and cross the bridge at a time when he knew the bridge was about to be raised for the passage of a boat on the canal.

[1] The evidence does not disclose whether or not there were any lights or signals of any kind upon the bridge, other than the electric bell and gong above mentioned, which bell and gong were ringing at and before the time when the automobile entered upon the bridge. There were no guard gates at the approaches, for the reason, as stated above, that with this type of bridge, at the location where it was placed, such gates were impracticable, and failure to install and operate them under the circumstances did not constitute negligence. The means provided by the state to warn users of the street when the bridge was about to be operated and to guard against accidents were reasonable and ample, if its employés reasonably attended to their duties.

[2] As to the conduct of the watchman or flagman at the north approach to the bridge at the time of this accident there is a conflict of testimony, but the weight of the evidence fairly establishes the contention of claimants that as they approached the bridge the flagman negligently and carelessly motioned to them to pass over and across the bridge when he knew it was about to be raised. This is denied by the flagman, who is corroborated by the flagman at the southerly end of the bridge, who was at least 70 or 80 feet distant from the flagman at the northerly end of the bridge at the time. All three claimants testify positively to this direction of the flagman, and I am convinced that they speak the truth. Mr. Drennan, one of the claimants, is and for ears has been a merchant of standing in the city of Syracuse, Lillian M. Drennan is his wife, and claimant McDonald occupies a position of trust and responsibility with the New York Central Railroad Company. They are all persons of intelligence, and as witnesses appeared to be telling a frank and truthful story of the events leading up to and connected with the accident.

[3] It is true that the gong had been rung by the bridge tender before starting to raise the bridge, and that the electric bell was kept ringing from the time the signal to raise the bridge was given until after the automobile had passed over the southerly end of the bridge. It is also true that all the claimants were familiar with the bridge, its manner of operation, and its dangers; but if, as I think the evidence fairly establishes, they were invited to enter upon the bridge by the servant of the state, placed there to notify them when danger existed and to guard their safety, they were justified in concluding that the way was safe for them to proceed, and they were not negligent in acting upon the invitation and direction of the flagman.

As a result of the injuries sustained by him and his wife, claimant Thomas C. Drennan was obliged to pay and did pay for medical and hospital care and attendance the sum of $998, in addition to which he should recover as compensation for his injuries in the loss of services and society of his wife the sum of $1,500, making in all the sum of $2,498, for which he is entitled to judgment.

The injuries sustained by Mrs. Drennan were slight, and the expense of her medical treatment, etc., was paid by her husband and has been included in the amount awarded to him. As compensation for the injuries received by her, she should have judgment for the sum of $250.

Claimant McDonald necessarily paid for medical attention and treatment $432, with clothing damaged and destroyed of the value of $40. As compensation for his injuries, he should recover the sum of $1,000, making in all the amount of his recovery $1,432.

Findings in accordance herewith may be presented for signature.

ACKERSON, P. J., concurs.

(178 N.Y.S.)

SCHNEIDER v. HODGKINS FIELD HARDWARE CO., Inc.
(Chautauqua County Court. November 3, 1919.)

SALES392-TO RECOVER PRICE ON RESCISSION FOR BREACH OF WARRANTY,
BUYER MUST RETURN GOODS UNLESS VALUELESS.

In an action for damages for alleged breach of warranty in the sale of three automobiles, where the uncontradicted evidence disclosed that one of them went into plaintiff's possession, the evidence was conflicting as to whether plaintiff or defendant held possession of the others, and there was no evidence of any offer to return them, plaintiff has not brought himself within Personal Property Law, § 150, subd. (d), relating to seller's breach of warranty, rescission, and permitting recovery of price paid, and cannot recover the full purchase price, in the absence of testimony that they were valueless.

Appeal from Municipal Court of Dunkirk.

Action by Lawrence Schneider against the Hodgkins Field Hardware Company, Incorporated. From a judgment for plaintiff, and from a denial of defendant's motion to set aside the verdict and for new trial, defendant appeals. Judgment reversed, and new trial granted.

John L. Hurlbert, of Dunkirk, for appellant.
John L. Sullivan, of Dunkirk, for respondent.

OTTAWAY, J. This is an appeal from a judgment entered in the Municipal Court of the City of Dunkirk, New York, upon the verdict of a jury, in favor of the plaintiff and against the defendant, for $500 damages and $41.80 costs, and an order of said Municipal Court denying the motion of defendant to set aside the verdict of the jury and for a new trial.

This action was brought to recover damages for an alleged breach of warranty in the sale of three automobiles by the defendant to the plaintiff, for which the plaintiff paid the sum of $500. The plaintiff has recovered of the defendant the purchase price of said automobiles. Upon the trial of the action, neither party gave any evidence as to the value of the automobiles, either as warranted or as they were when sold. Apparently the plaintiff based his right to recover and the amount of damages upon the purchase price paid by him for the automobiles. He based this claim upon section 150 of the Personal Property Law (Consol. Laws, c. 41). Subdivision (d) of said section provides:

* *

"Where there is a breach of warranty by the seller, the buyer may rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid."

The uncontradicted evidence discloses that one of these automobiles went into the possession of the plaintiff. As to the possession of the other two automobiles, the evidence is conflicting, whether it was in fact in the possession of the plaintiff or the defendant. No evidence was given of any offer to return these automobiles to the

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defendant. Under these circumstances, the plaintiff has not brought himself within the provisions of subdivision (d) of section 150 of the Personal Property Law, and the plaintiff could not recover the full amount of the purchase price of these automobiles, in the absence of testimony showing they were valueless. Frieder v. Rosen, (Sup.) 147 N. Y. Supp. 442.

The judgment of the Municipal Court is reversed, and a new trial granted in the Municipal Court of the City of Dunkirk, with costs to the defendant to abide the event of the action.

(178 N.Y.S.)

with reference to whom no physical or mental defect was shown, though the charge was made in one information and one warrant for failure to send the four children to school.

Appeal from Justice Court.

Oscar Himmanen was convicted of a violation of the Education Law, after a trial before a justice of the peace of the town of Van Etten, Chemung county, and a jury, and was fined $5, which he paid, and he appeals. Affirmed.

Frederick E. Hawkes, of Waverly, for appellant.

Ely W. Personius, Dist. Atty., of Elmira (Leo Waxman, of Elmira, of counsel), for the People.

SWARTWOOD, J. The defendant is the father of four children, of the ages of 12, 11, 10, and 7 years, respectively, and resides with his wife and children in the town of Van Etten, Chemung county. Prior to February, 1919, transportation was furnished by the school district for the defendant's children to and from school, but in that month the transportation was discontinued by the district. Thereafter the defendant failed to cause his children to attend school. The defendant's residence is 311⁄2 miles distant from the schoolhouse by one road, and 1 mile and 290 rods distant by a shorter road. The testimony given on the trial shows that the shorter road is muddy and has water standing on it in places during the rainy weather. The testimony also shows that one of the children (not the 7 year old one, who is under school age) is lame as a result of an injury to his leg. Nevertheless it is uncontradicted that two children were physically and mentally able to attend school.

[1, 2] Section 624 of the Education Law (Consol. Laws, c. 16), being part of article 23, which is headed "Compulsory Education," provides that

"Every person in parental relation to a child within the compulsory school ages and in proper physical and mental condition to attend school, shall cause such child to attend upon instruction," etc.

In school districts such as the one in which the defendant resided the school ages are between 8 and 16 years. It will be noted that children between the ages of 8 and 16 years are within the "compulsory school ages." This section also lays the duty upon the parent to cause such children to attend upon instruction, if the children are in proper physical and mental condition to attend school. It is therefore apparent that this particular article is just what its title indicates a compulsory education law-and when a parent fails in his duty to cause his children to attend school, his only defense under section 624 is to show that they are not in proper physical and mental condition.

The sole defenses set up by the defendant herein are that the distance from his house to the school is so great, and the roads a part of the time are so bad, that it is unreasonable to require him to send his children to school. Having decided that the only defense under section 624 of the Education Law is that the children are not in proper physical and mental condition to attend school, these defenses offered by the defendant become immaterial. Even assuming that they were