App. Div.] Second Department, March, 1910. sale; and in Horsfield v. Black (40 App. Div. 264) it was decided that where the will gave the residue of the estate to executors in trust to collect the rents and apply a portion to the support of a daughter, and upon her death to sell such real and personal estate and divide the proceeds among designated beneficiaries, partition of the real estate could not be had. The testator selected his own method of effecting the sale of the land, and until all persons having interests in the proceeds of sale of the land unite for reconversion, the method preferred by the testator must obtain. For the reason that three beneficiaries do not so unite, and for the additional reason that if they did so unite the provisions of the will could not be carried out as the testator directs, plaintiff may not maintain this action. Therefore, the interlocutory judgment overruling the demurrer should be reversed, with costs. HIRSCHBERG, P. J., WOODWARD, JENKS and BURR, JJ., concurred. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs. AUGUST WAHLER, Plaintiff, v. THE LONG ISLAND RAILROAD COMPANY, Defendant. Second Department, March 18, 1910. Railroad-negligence - injury at grade crossing-contributory negligence. Action to recover for personal injuries received by one who was struck by a train at a grade crossing. Evidence examined, and held, that the plaintiff was guilty of contributory negligence in that, had he looked as he testified, he must have seen the train and, seeing it, had attempted to cross in front of it. MOTION by the plaintiff, August Wahler, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Queens County Trial Term in June, 1909. Second Department, March, 1910. [Vol. 137. Henry M. Dater [George F. Elliott with him on the brief], for the plaintiff. William C. Beecher [Joseph F. Keany with him on the brief], for the defendant. THOMAS, J.: Metropolitan avenue runs north and south. The defendant's railway crosses it obliquely, but in a general easterly and westerly direction. The plaintiff was struck by defendant's train moving westerly. The plaintiff walked in a generally southerly direction until he came to the gates, and, finding them raised, turned and walked southeasterly across Metropolitan avenue. His evidence as to looking is somewhat confused, but it is certain that he did look to the right and to the left, and that he did look to the left, first, while walking upon the sidewalk toward the center of Metropolitan avenue and hence towards defendant's tracks, and it is certain also that when he was fifteen feet from the track on which the train came he looked to the left and saw no train, and the fact seems to be that just as he was stepping over the first rail of the track of the oncoming train he looked to the left again and saw the train about 100 to 200 feet away. Then, to use his words: "When I saw this engine one hundred and fifty feet away I thought I could make it, get over safe for the minute, and I found I couldn't make it and tried to make my way back and lost myself, and that is the last thing I remember for three or four days. I got excited." In another place the witness explains himself: "When I got to the point where the gates were on Metropolitan avenue just before I came to the crossing the gates were up. I got as far as the gates and had to turn to my left to get in the street - got from the street about fifteen feet from the tracks, and I seen-glanced to my left and I took another glance and got to about the first rail-glanced to my right and heard a rumbling and I heard a bell and I seen an engine coming right on top of me-glanced to my right and to my left and I seen an engine coming on top of me and for a minute I didn't know what to do — for a minute I thought I could make it." While, on account of the curve, the view to the right was limited, the view to the left was unlimited for a mile or two, and it was utterly impos - App. Div.] Second Department, March, 1910. sible for the plaintiff to have looked with any discernment when he was fifteen feet from the track without seeing that the train was approaching and that there was probably not time for him to make the passage in front of it. Although it is claimed that the upraised gates gave assurance that no train was approaching, he did not rely wholly upon that, but used his eyes to aid a safe crossing. It must be inferred that if he looked he saw what would appear to a person looking. A train of cars advancing toward him on a track intersecting his way was not an object to elude his sight if he did look, and if he did not see such object it is evident that his look was grossly careless and his care shallow. It seems also that as he was about stepping over the rail he saw the train, and that he thought he "could make it" and kept on his way. The train was then some 150 feet away, and there was nothing to prevent his stepping back and allowing the train to pass. It is true that, according to his evidence, the gates were closed about this time, but there is no pretense of any other diversions or any possible obstruction to his stepping back, nor was he so confused at the moment but that he thought he "could make it," and it was after he found that making it was perilous that his confusion arose. For the reason that he looked when fifteen feet from the track, and either saw the train and kept on his way, or did not see it through his negligence, and that he looked again and saw the train when he was about to step upon the track, and negligently concluded to attempt passage in front of it, I think that the complaint was properly dismissed and that judg ment should be ordered for defendant, with costs. Present HIRSCHBERG, P. J., WOODWARD, JENKS, BURR and THOMAS, JJ. Plaintiff's exceptions overruled and judgment unanimously ordered for defendant, with costs. Second Department, March, 1910. [Vol. 137. SIMON S. HILL, Respondent, v. LOWELL M. PALMER, Appellant. Second Department, March 31, 1910. agreement to furnish coal so long as promisor continued business facts not showing breach. There can be no recovery for the breach of a contract which required the defendant to furnish to the plaintiff all coal used by him in his business, with a proviso that the agreement should terminate if the defendant "or his assigns" should give up the coal business, where the evidence shows that the defendant discontinued business, because the persons owning the lands on which it was conducted, and with whom the defendant shared the profits, dissolved the partnership and continued the business on their own account, and not as an assignee of the defendant. APPEAL by the defendant, Lowell M. Palmer, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1909, setting aside the verdict of a jury in favor of the defendant and granting a new trial. Edward M. Shepard [A. B. Siegel, with hira on the brief], for the appellant. Edward A. Alexander, for the respondent. PER CURIAM: The complaint charges breach of contract by the defendant, and in another cause of action fraudulent representations by defendant inducing the plaintiff to make the same. The plaintiff, acquiescing in the ruling of the court, elected to stand on the breach. The court, in a charge that left the plaintiff without just criticism, submitted the question of the breach to the jury, and a verdict resulted for the defendant, which the court set aside upon the ground that it was against the weight of the evidence. The court submitted in addition to the question of damages the interpretation of the contract upon the theory that it was doubtful, and that evidence of "what was said by the parties at the time or before its execution about it may be resorted to, to help you to the true understanding of the parties." The plaintiff did not move for a direction of a App. Div.] Second Department, March, 1910. verdict, nor object to the submission to the jury, while the defendant moved for nonsuit and excepted to the submission to the jury, in any form, of the interpretation of the contract. Looking at the evidence even most favorably to the plaintiff, the verdict should not have been set aside. Edward Hill, plaintiff's brother, was in the business of taking orders for the sale of coal, which he in turn filled by orders on the defendant, who was conducting in his own name, and apparently in his sole right, a coal pocket and coal business at the foot of North Ninth street, Brooklyn. On February 8, 1904, Hill was indebted to the defendant in the sum of $27,531.06, and inconsiderably to others, and had for the payment thereof his horses, trucks, etc., on which defendant had a mortgage, and some inconsiderable amount in bills receivable, all valued not beyond $5,000. Hill's brother Simon, the plaintiff, undertook to help him, and to that end, on the above date, entered into a contract with the defendant wherein he bound himself to pay his brother's indebtedness, less $5,000 canceled, and "for a period of ten years and six months from date" to purchase from the defendant all the coal used by him in his business, of named description, "at a price of forty cents per gross ton above the cost, f. o. b. accord ing to the monthly circulars of the several coal companies," and plaintiff agreed to pay therefor. In consideration of such promises the defendant agreed to reduce the indebtedness to $22,531.06, extend payment of a part thereof, and "to furnish to the party of the first part all the coal used by him in his business as aforesaid, of the sizes and at the prices above named, provided, however, that he shall not be prevented from furnishing or delivering the same by strikes or other occurrences beyond his control. It is understood and agreed that if the party of the second part, or his assigns, shall cease to continue in the coal business at the foot of North Ninth Street, in the Borough of Brooklyn, New York City, during the term of this agreement, that this agreement shall thereupon terminate and come to an end." The first draft of the contract did not contain the words "or his assigns," and plaintiff claims with probable truth that they were inserted at his brother's suggestion. The contract was fulfilled by both parties to June 1, 1906, when the defendant retired from the business in question, and refused to recognize further obligation to furnish plaintiff coal. The plaintiff contends * * |