122 N.Y.S. 704 | N.Y. App. Div. | 1910
This is an action to recover damages because of the alleged negligence on the part of the defendant in permitting one of its public streets to remain in an unsafe condition for public travel whereby the plaintiff was injured. The accident occurred on the 31st day of March, 1908. On the 8th day of April, 1908, a claim -for damages as required by section 224 of chapter 473 of the Laws of 1906, known as the “ Uniform Charter of Cities of the Second Class,” which went into effect January 1, 1908, and which is applicable to the city of Troy, was served on the city clerk of the city and on the sixteenth day of April was duly presented to the common council. Uotic'e of intention to commence this action was served upon the corporation counsel July 9, 1908, more than three months after the happening of the accident. The coilnty'jndge dismissed the complaint because such notice was not served upon the corporation counsel within three months.
Said section 224 of the Uniform Charter of Cities of the .Second. Class so far as applicable to the question now under consideration reads as follows : “ The city shall not be liable in a civil action for damages or injuries to /person or property * * * unless a claim therefor in writing * * * shall within three months after the'happening of the accident or injury, * * * be presented to the common council and served upon the mayor or city clerk, and notice of intention to commence an action thereon be. served upon the corporation counsel, nor unless an action shall be commenced thereon within one year after the happening of such accident or injury or the occurrence of such act, omission, fault or neglect; but no action shall be commenced to recover upon or enforce any such claim against the city until the expiration of three months after the service of said notice upon the corporation counsel.”
In behalf of the plaintiff it is contended that chapter 572 of the Laws of 1886, providing that notice of an intention to commence the action be given to the corporation counsel within six months after the cansé of action shall have accrued, was not repealed either
Assuming that the act of 1886 was superseded by said section 224 of the uniform charter, I think, nevertheless, that the notice; to the corporation- counsel was served in due time. I cannot agree with the learned county judge in his interpretation of said section 224 above quoted. . The claim presented to the common council and served upon the mayor or city clerk is required to be prepared with much detail, and must of course be presented and served within •three months. ■ The words,, “ shall within three months after the happening of the accident or injury,” in my opinion, apply only to the claim which is to be presented to the common council and served upon the mayor or city clerk, and do not qualify or apply to the notice of intention to commence an action which is to be served on the corporation counsel; Siich is the natural import and meaning of the phraseology employed. Such clause, “ shall within three- months after the happening of the accideUt-or injury,” is found in the midst of the provisions concerning the claim to be presented to the com
The judgment should be-reversed and a new trial granted, with costs to the appellant to: abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide eve.nt.
Sic. Probably intended for 1891.— [Rep.