Clawson v. City of Ithaca

214 A.D. 333 | N.Y. App. Div. | 1925

H. T. Kellogg, J.:

The plaintiff, while walking upon a sidewalk in a street of the defendant city, was injured by a branch falling from the limb of a tree which overhung the sidewalk. The tree was upon the premises of the defendant Williams. The plaintiff sought recovery from the defendant Williams and 'the defendant city on the ground that they had been negligent in suffering the dead branch which fell to remain upon the tree. The jury found a verdict exculpating the defendant Williams and inculpating the defendant" city. It is not conceivable that the defendant city was guilty of negligence while the defendant Williams, the owner of the tree, was free from blame. The verdict, therefore, is self-contradictory and suggests the thought that the jurymen who found it were prompted by sympathy rather than by reason. However this may be, there is another and conclusive reason why the plaintiff must fail in her action against the city. The charter of the defendant city provides that all persons having claims against it for damages must, within thirty days from the accrual thereof, present to the common council claims in writing, stating the nature and extent of the damages or injuries together with certain other prescribed facts, and that such claims “ must be verified by the oath of the claimants.” A claim was filed with and served upon the city clerk on behalf of this plaintiff within thirty days, which was subscribed and verified by the plaintiff’s daughter. The plaintiff never filed a claim or notice of claim which had been verified by herself. A verification by the plaintiff was essential. (Cotriss v. Village-of Medina, 139 App. Div. 872; affd., 206 N. Y. 713.) It has been held that if a claimant is physically or mentally unable to prepare and present a claim he is entitled to additional time to comply with the requirement of filing. The evidence in the case establishes beyond contradiction that the plaintiff, long before the expiration of the thirty-day period, was entirely competent, both physically and mentally, to prepare and verify a claim. Her omission in this respect precludes a recovery and requires a dismissal of the action.

The judgment and order should be reversed and the complaint dismissed, with costs.

All concur.

Judgment and order reversed on the law and complaint dismissed, with costs.