Thе court below dismissed the complaint upon the merits on the ground that the plaintiff had proved no negligence on the part of the defendant, under the authority of
Lalor
v.
City of New York
(
The judgment dismissing the complaint must, however, be "sustаined on other grounds.
Defendant questions the sufficiency of the notice of intention to sue which plaintiff filed under chapter 572, Laws of 1886, which provides that no actiоn to recover damages against any city of the state, having a population of 50,000 or over, on the ground of the negligence of the city’s officers or agents, can he maintained, “unless notice of the intention to commence such action and of the time and place at which the injuries were receivеd shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shаll have accrued.” The notice states that this accident happened at a “hole in the pavement ” “on the public highway, at about Washington street, near Vestry street, in the Borough of Manhattan, in the City of New York.” This notice is so vague and indefinite as to be almost meaningless. Where is “at about Washington street, near Vеstry?” Is it
in
Washington street ? If so, on which side of Washington street and on which side of Vestry street, and. how near to Vestry street ? The word “near ” means “ not distant from,” but the term is wholly relative, and locates nothing with any degree of precision. On the trial the place of the accident was fixed by plaintiff’s witnesses as being in front of No. 419 on the east sidе of Washington street, which was three numbers south of Vestry street. No one could from the notice locate the place with accuracy, and plaintiff is wholly withоut excuse for this defect.
(Purdy
v.
City of New York,
The city had no difficulty in finding the spot where plaintiff fell and making its measurements soon after the accident, and as the first purpose of the statute is to
*196
enable the city to conduct its investigations intelligently, it is urged that the notice, vague as it is, is definite enough to serve that purpose in this case.
(Beyer
v.
City of North Tonawanda,
- Plaintiff has not only failed to prove the sеrvice of a proper notice, but has also failed to plead and prove another fact essential to sustain the judgment of the trial court. Sectiоn 261 of the Greater New York charter provides that “No action * * * shall be prosecuted or maintained against The City of New York, unless it shall appear by and as an allegation in the complaint * * * that at least thirty days have elapsed, since the demand, claim or claims upon which such action * * * is founded were prеsented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after suсh presentment; * * * ” Section 149, as amended, L. 1910, ch. 545, provides, in part, that: “ The comptroller may require any person presenting for settlement an account or claim for any cause whatever, against the corporation, to be sworn before him or before either of the deputy comptrollers, touching such account or claim, and when so sworn, to answer orally as to any facts relative to the justness of such account *197 or claim. Willful false swearing before the comptroller or deputy comptroller is perjury and punishable as such. ”
The complaint alleges due service of notice of plaintiff’s claim and that
“
said thirty days have expired prior to the commencement of this action,
and said claim has not been adjusted or paid.
” This is far from being an allegation that the comptroller has
“
neglected or refused” to make an adjustment or payment. Gaynor, J., in
George
v.
City of New York
(
The evidence establishes that notice to appear for examination before the comptroller on October 5, 1910, was duly given to plaintiff and that adjournments of the examination were had from time to time at the request of plaintiff on account of her physical inability tо appear . for examination, with the understanding, at least on the part of the comptroller, that such adjournments were without prejudice to the comрtroller’s right to settle or adjust the claim within the same period of time after such examination as the comptroller had at the date originally fixed, and that such аdjournments were carried to a date long beyond the commencement of the action. The comptroller is entitled to examine the claimant to ascertain whether or not an adjustment or settlement ought to be made. If he seeks such an examination, and for no other reason than lack of information as to the
*198
merits of the claim, due to claimant’s inability to appear for such examination, fails to pay or adjust the claim, it cannot be said that his failure to pay is a neglect or refusal to make an adjustment or payment. It should appear that he has waived or otherwise lost the right to examine the claimant.
(Tolchinsky
v.
City of New York,
The complaint failed to state facts sufficient to constitute a cause of action and defendant was not required to raise the point by demurrer. (Code Civ. Pro. § 499.)
The trial court erred in refusing to grant defendant’s motion to dismiss the complaint for insufficiency and in submitting to the jury the question of the comptroller’s refusal or neglect to pay or adjust the claim.
The judgment should be modified by striking out the words “on the merits,” and as so modified affirmed, with costs.
Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback and Hogan, JJ., concur; Seabury, J., concurs except in so far as the decision holds the description of the place in the notice to be insufficient. The defendant had no difficulty in locating the place. The notice, therefore, accomplished its purpose.
Judgment modified.