in control of the door covering the steps to the cellar, the defendant is responsible for any damages caused by failure to keep the entrance to the cellar covered or to guard it when uncovered. The two actions were tried together, and the jury brought in verdicts in favor of the plaintiffs which the trial justice set aside. The complaints are based upon the defendant's negligence, and without proof of defendant's negligence there may be no recovery. We may assume that Mrs. Kirby was free from contributory negligence, we may assume that some person was negligent in leaving open doors which are intended to cover an opening of the street, and in failing to guard the opening while it was uncovered. The question still remains whether such negligence is in law negligence of the defendant. Schaick, 108 N. Y. 530, 15 N. E. 424, 2 Am. St. Rep. 459; Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566, 5 L. R. A. 794. If, as in this case, the owner "transfers either title or possession in part only, he does not escape the burden." Trustees of Canandaigua v. Foster, 156 N. Y. 354, 361, 50 N. E. 971, 973 (41 L. R. A. 554, 66 Am. St. Rep. 575). The burden, however, is not one of insurance of the safety of the opening, it is merely a duty of exercising reasonable care. "The defendant is not to be deemed liable for the consequences to a stranger of the wanton or careless act of some other person, not in his employ." Martin v. Pettit, supra, p. 123, 22 N. E. 567. Doubtless, where an owner or his servant has notice that the opening in the sidewalk which he maintains is about to be uncovered, he may not stand idly by and assume that the person uncovering it will The evidence shows that on the morning exercise reasonable care in guarding it while of the accident there was some trouble in uncovered. That duty rests upon the own the electric lights in the store leased to the er, and may not be transferred. Jennings tenant. The tenant apparently did not com-v. Van Schaick, supra. Similarly where the plain to the defendant from whom he had owner has authorized another to uncover an leased the store, but to the builder of the opening, as in cases where a coal dealer rehouse who had sold it to the defendant only moves the cover over a coal hole in order to a few weeks earlier. The builder instructed deliver coal ordered by the owner, the ownan electrical contractor to repair the lights. er becomes liable for any negligent failure to The contractor sent two workmen to the guard the opening while uncovered. Anderpremises. The workmen found the trouble son v. Caulfield, 60 App. Div. 560, 69 N. Y. was caused by some defect in a fuse in the S. 1027. The opening in the street when uncellar. Though originally they entered the covered is dangerous. The law places upon cellar by descending a flight of steps in the the owner a duty of care "measured by interior, thereafter for their convenience, whatever public safety requires," and either and to obtain light in the cellar they opened notice that the opening is uncovered or authe doors leading to the street and left them thority given by the owner to uncover the open for not over 10 minutes. The elec- opening creates a situation where the owner tricians who opened the door were not the is called upon to take steps to protect the defendant's servants; they were not per-public. Failure to protect under such cirforming, as independent, contractors, work cumstances may create a liability, whether requested by the defendant; the defendant such failure is due to active or passive neghad no notice that they were about to open ligence on the part of the owner or his servthe doors; and the accident followed so ants, or on the part of an independent conshortly after the doors were opened that the tractor. On the other hand, when the opendefendant had no notice, actual or construc- ing is properly constructed in the first place, tive, that the doors were open. There is, and is kept in proper repair afterwards, the therefore, no basis for holding the defendant owner is not liable for the carelessness of liable for the negligence of the electricians, third parties in using the opening, as by unless the law places upon the owner of leaving the hole unguarded when in use or premises a liability for damages caused by uncovered when not in use. Trustees of the negligence of any person who opens and Canandaigua v. Foster, supra. leaves unguarded an opening in the street leading to such premises. [1-4] The owner who maintains an opening in the street in front of his premises unquestionably has a duty towards the public of reasonable care which he cannot transfer or delegate as long as he is in possession and control of the opening. Jennings v. Van The judgment in each case should be affirmed, with costs. HISCOCK, C. J., and CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. MCLAUGHLIN, J., absent. Judgments affirmed. (239 N. Y. 475) (147 N.E.) HENRY GLASS & CO. v. MISROCH. (Court of Appeals of New York. Feb. 25, 1925.) 1. Sales 342-Seller's right of action for price on wrongful rejection of goods dependent on whether title passed. Under Personal Property Law, § 144, subd. 1, with exceptions stated in subdivisions 2, 3, seller's right of action for price, on buyer's wrongful rejection of goods in conformity with contract, depends on whether title had passed. 2. Sales 199-Whether title had passed to buyer at time of wrongful rejection of goods depends on intention ascertained by statutory rules. Whether title had passed to buyer at time of wrongful rejection of goods depends on parties' intention, ascertained by rules in Personal Property Law, § 100. subd. 2, may assent on condition that he be 8. Sales 168 (2)—Bulky articles must be Tender of bulky articles in performance of contract must be seasonably made, so that buyer may have opportunity to examine them and see that they are such as he is entitled to demand before close of day on which delivery is made. 9. Sales 200 (3)-Examination of goods by buyer, as condition precedent to transfer of property, waived by assent to delivery without reservation or condition. Examination of goods by buyer, so far as condition precedent to transfer of property, is waived by assent to delivery without reservation or condition, and even when permitted on request, under Personal Property Law, § 128, subd. 2, closes with end of day on which delivery is made. 3. Sales211-Property passes to buyer on assent to sellers' appropriation of goods to contract by delivery in deliverable state. Under Personal Property Law, § 100, rule 4, subd. 2, and rule 5, sellers delivering goods to buyer, as required by contract in deliver-10. Sales 342-Exercise of right to examine able state (section 156, subds. 1, 4), are preand reject goods after unconditional assent sumed to have unconditionally appropriated to delivery does not bar action for price, if goods to contract, and if buyer, by his conduct, goods were in deliverable state. assents to appropriation, property passes, under subdivision 1 of rule 4. 4. Sales168(2)-Reasonable time to return goods found defective varies with circumstances. Reasonable time for buyer to return goods found defective varies with circumstances, such as nature of defects, whether patent or concealed. 5. Sales178(1)-Buyer's assent to sellers' appropriation of goods to contract by delivery does not bar rescission for defects afterwards discovered. Buyer's assent to appropriation of goods to contract by delivery in deliverable state does not signify acceptance so definitive and deliberate as to bar rescission for defects, under Personal Property Law, § 128, subd. 1, and section 129, but signifies buyer's willingness to take goods, subject to rescission and return if defects are afterwards discovered, whether delivery is made through carrier or other intermediary or to buyer personally. Right to examine and reject goods after assent to delivery without reservation or condition survives as condition subsequent, that is, assent to appropriation of goods to contract stands unless revoked for sufficient cause, and exercise of right does not bar action for price, if goods rejected were in deliverable state. 11. Sales 178(3)-Receipt of goods without reservation or disclaimer defers examination indefinitely for buyer's convenience. Effect of receipt of goods without reservation or disclaimer is to defer examination indefinitely for buyer's convenience, though dissent must be announced within reasonable time, under Personal Property Law, § 128, subd. 1, and section 129; such time varying with facts. 12. Sales 200 (3)-Seller bears risk of destruction of goods, if title does not pass on buyer's assent to consummated delivery. If title does not pass on buyer's assent to consummated delivery, seller must bear risk of destruction of goods during indefinite period for examination thereof by buyer, though he has complied with contract and grounds of re 6. Sales 201 (1)-Delivery must be assent- 7. Sales177-Buyer may assent to delivery Buyer may refuse to assent to delivery tendered, subject to risk of liability for damages, or, under Personal Property Law, § 128, 13. Sales If conflicting interpretations of statute governing sales are reasonably possible, that which keeps it in accord with mercantile practice should be preferred. 14. Sales 178(1)—Unqualified assent to delivery is acceptance of title subject to re scission. ceived them without reservation or condition. The following day, January 21st, he wrote that the goods were defective, and that payment would be refused. He reiterated this position later. This action followed for the recovery of the price. Assent to delivery of goods, unless otherwise qualified, is assent to appropriation thereof to contract, and hence acceptance of title, subject to rescission. The jury found the goods to be of mer15. Sales 200 (3)-Delivery held not quali-chantable quality and in accordance with the fied by buyer's telegram, offering to assent contract. Upon their verdict to that effect to delivery and pay for goods if as ordered. there was a judgment for the plaintiffs. The Buyer's telegram, assenting to delivery, if Appellate Division reversed and dismissed tender, rejected by mistake, were repeated, and the complaint upon the ground that the constating that payment would be made if goods tract was executory and that the remedy was were as ordered, held not to have qualified de- by action for the damages resulting from livery, so as to rebut inference of ownership the breach. by buyer. 16. Evidence 271 (19)-Sellers' letter arraigning buyer's conduct in rejecting goods held inadmissible in sellers' favor. Sellers' letter, containing scathing arraignment of buyer's conduct in rejecting goods, held erroneously received as evidence in sellers' favor. [1] "Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods." Pers. Prop. Law (Cons. Laws, ch. 41) § 144, subd. 1. [2, 3] There has been wrongful refusal by Appeal from Supreme Court, Appellate Di- this defendant to pay for the goods in acvision, First Department. cordance with the contract. The question is whether the property had passed to him at Action by Henry Glass & Co. against Abra- the time of the refusal. Up to the time of ham Misroch. From judgment of Appellate the Sales Act, the answer to that question Division (210 App. Div. 783, 206 N. Y. S. 373) would have been unimportant in New York. reversing judgment of Trial Term for plain-Till then, the seller, upon tender of goods tiff and dismissing complaint, plaintiff appeals. Modified by granting new trial, and as so modified affirmed. in conformity with the contract, might have maintained an action for the price, if the tender was wrongfully rejected, though there McAndrew, 44 N. Y. 72, 78; Hayden v. De J. Nathan Helfat, of New York City, for had been no transfer of the title. Dustan v. appellant. Isidor Wels, of New York City, for respond- Mets, 53 N. Y. 426; Mason v. Decker, 72 N. Y. ent. 595, 28 Am. Rep. 190; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415. All this has now been changed. With exceptions not now important (Pers. Prop. Law, § 144, subds. 2 and 3), the right of action is dependent upon a transfer of the property. To determine whether the property has passed, we look to the intention of the parties; and for the ascertainment of their intention, the statute has its rules (Pers. Prop. Law, § 100). Rules 4 and 5 are the ones applicable here. Sub division 1 of rule 4 is to the effect that: CARDOZO, J. In October, 1918, plaintiffs agreed to sell and defendant to buy 6,000 yards of material, described as Palm Beach suitings, to be delivered at defendant's place of business on January 15, 1919, and to be paid for 70 days thereafter. Tender of delivery was made at the prescribed time, and rejected by the buyer's agent. The sellers thereupon gave notice to the buyer that the goods would be resold for his account and that he would be charged with the deficiency. Thus, warned, the buyer telegraphed the sellers: "Had instructed receiving clerk to accept invoice of January fifteenth." At the same time his attorneys wrote that their client had need of the goods, and had not intended to reject them. "You will please send them in and if they are in accordance with the contract they will be paid for." Obeying these directions, the plaintiffs, on January 20th, sent the goods again by their truck to the defendant's place of business and tendered them to the defendant, who re- effect that: "Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made." Subdivision 2 of the same rule is to the (147 N.E.) "Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section 101." Rule 5 provides that: "If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon." The goods in controversy were delivered by the sellers to the buyer and in a deliverable state (section 156, subds. 1 and 4). The sellers by that act are presumed to have unconditionally appropriated to the contract the goods so delivered. If the buyer by his conduct assented to the appropriation, the property has passed. [4, 5] The defendant insists that the goods are not appropriated to a contract with the assent of the buyer until the buyer has so manifested his approval of their quality as to preclude him thereafter from giving notice of rescission. Pers. Prop. Law, § 128, subd. 1; Id., § 129. In that view, the passage of title may be indefinitely postponed for the reasonable time within which a buyer is privileged to return goods found to be defective will vary with many circumstances, as, for instance, the nature of the defects, whether patent or concealed. Schnitzer v. Lang, 239 N. Y. 1, 145 N. E. 65; Bierman v. City Mills Co., 151 N. Y. 482, 45 N. E. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635. We think assent to appropriation is something more immediate and certain. It does not signify an acceptance so definitive and deliberate as to bar rescission for defects. Williston, Sales, § 482. It signifies the buyer's willingness to take as his own the goods appropriated by the seller, subject to rescission and return if defects are afterwards discovered. The cases are many in which goods are shipped by carriers who receive them for the buyers. An order for such shipment is an assent that the goods be appropriated by the seller, and title passes when they are delivered to the carrier "in a deliverable state." Standard Casing Co., Inc., v. California Casing Co., Inc., 233 N. Y. 413, 135 N. E. 834; Rosenberg Bros. & Co. v. Buffum Co., Inc., 234 N. Y. 338, 343, 137 N. E. 609; Kinney v. Horwitz, 93 Conn. 211, 219, 105 A. 438; Levy v. Radkay, 233 Mass. 29, 123 N. E. 97. This does not mean that a buyer is helpless if the goods when they reach their destination are found to be de fective. His assent to the appropriation of [6-9] When we speak of delivery, we must be on our guard, nonetheless, against misleading ambiguities. Delivery to be operative as a transfer of the property must be assent- | goods rejected were in truth in a deliverable ed to by the buyer. Williston, Sales, § 472; state. When we speak of the condition as cf. section 280, p. 592. The seller may not subsequent, we mean that assent to the apforce the goods upon a buyer unwilling to propriation stands unless revoked for a sufreceive them. The buyer, when delivery is ficient cause. It is a different question tendered, may refuse to assent to it at all whether in the event of revocation, the seller (taking, of course, the risk of liability for is relieved of the burden of proving as a condamages), or may assent subject to the condi- dition precedent to recovery that the goods, tion that he be allowed to see the goods be- though appropriated with assent, conform in fore delivery or appropriation shall be deem- kind and quality to those called for by the ed to be complete. "Unless otherwise agreed, contract. Williston, Sales, §§ 473, 278; Benwhen the seller tenders delivery of goods to jamin, Sales (6th Ed.) p. 400; Pers. Prop. the buyer, he is bound, on request, to afford Law, § 100, rule 4, subd. 1. Enough for the buyer a reasonable opportunity of exam- present purpose that the effect of receipt ining the goods for the purpose of ascertain- without reservation or disclaimer is to defer ing whether they are in conformity with the the examination indefinitely for the convenicontract." Pers. Prop. Law, § 128, subd. 2. ence of the buyer. Williston, Sales, § 474. The law was the same before the statute was True, dissent must be announced within a enacted. "The rule is that a tender of bulky reasonable time (Pers. Prop. Law, § 128, articles in the performance of an agreement subd. 1; Id., § 129), but a reasonable time is must be seasonably made, so that the person without determinate limits and varies with may have an opportunity to examine the ar- the facts. If title does not pass when there ticles tendered, and see that they are such is assent to à consummated delivery, the sellas they purport to be, and such as he is en- er will have to bear the risk of the destructitled to demand, before the close of the day tion of the goods during a period of indeteron which the delivery is to be made." Cron- minate duration, though he has complied inger v. Crocker, 62 N. Y. 151, 158; cf., Mc- with his contract and the grounds of rejecNeal v. Braun, 53 N. J. Law, 617, 23 A. 687, tion are capricious or pretended. There can 26 Am. St. Rep. 441; Lummis v. Millville be little doubt that the announcement of such Mfg. Co., 72 N. J. Law, 25, 26, 60 A. 219; Wil- a rule will be a shock to the average merliston, Sales, §§ 455, 478, 479. There is a dif- chant who believes that he is through with ference in other words between inspection the transaction upon delivery accepted by following delivery, and inspection to deter- the buyer, unless indeed he has made demine whether delivery shall be permitted. livery of goods that are defective. If conUntil that determination is made, the trans- flicting interpretations of the statute are reaaction is in fieri. Delivery remains inchoate sonably possible, our preference should be for while the buyer refuses to treat it as perfect- the one that keeps it in accord with mercaned. Even taking the goods in may be so tile practice. There is some suggestion, it is qualified by notice or agreement that posses- true, of a rule that may be said to occupy a sion will not operate as an expression of as- middle ground. Acceptance after inspection sent. "The buyer is entitled to examine the survives, we are told, as a condition precedgoods to decide whether he will become own- ent even though delivery is perfected, yet er, and until the examination is completed or at some intermediate point, before a reasonwaived, he is under no obligation to accept able time for rejection has expired it fades the goods." Williston, Sales, § 472. The ex- into a condition subsequent. We find no amination is waived, however, in so far as basis in the statute for a distinction that it is a condition precedent to the transfer would complicate by the introduction of new of the property, when there is an assent to refinements an already complicated subject. delivery without reservation or condition ac- Assent to delivery, unless otherwise qualicompanying the receipt and qualifying or fied, is assent to appropriation, and thus, subpostponing or neutralizing its effect. Exam- ject to rescission, an acceptance of the title. ination prior to such acceptance is indeed, as we have seen, to be permitted "on request" (Pers. Prop. Law, § 128, subd. 2), yet even when requested, it is immediate and summary, closing, at least in ordinary conditions, with the close of the day, for which reason tender must be made at a seasonable hour (Croninger v. Crocker, supra). [10-14] Undoubtedly, a right survives to examine and reject thereafter, but it survives as a condition subsequent, and its exercise does not bar an action for the price if the [15] The defendant argues that his telegram to the plaintiffs and the letter written by his attorneys do qualify the delivery, and in qualifying it rebut the inference of ownership. We do not so construe them. The telegram is in effect a notice to the plaintiffs that the buyer will assent to a delivery, if the tender, rejected by mistake, is made to him again. The letter is merely a reminder by his lawyers that payment will not be due if the goods are not as ordered. To state this is to state the obvious. Nothing in the |