66 N.Y.S. 1042 | N.Y. App. Div. | 1900
The plaintiff sites to recover damages arising from serious and permanent personal injuries received in a fall on one of the defendant’s streets, on the 16th day of February, 1899, occasioned by the defendant’s negligence. Section 82 of the defendant’s charter (Chap. 529, Laws of 1896) provides as follows : “ No action against said village for damages for personal injuries alleged to have been sustained by reason of negligence of such village or of any departments, board, officer, agent or employe thereof, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of intention to commence such action and of the precise time and place at which the injuries were received, shall have been filed with
It is alleged in the complaint, and of course admitted by the demurrer, that for several days after receiving the injury, and because of the shock to his nervous system and the effects of angesthetics administered to him while setting the broken bones of his hip, the plaintiff was in a semi-conscious condition, absolutely unable to transact any business whatever, or to give any intelligent statements concerning his fall, or to prepare or give information sufficient for others to prepare a notice of his claim for damages ; but that as soon as he was so far recovered from the nervous and mental shock that it was physically and mentally possible for him to d.o so, viz., on the 21st day of February, 1899, he caused the required notice to be served upon .the defendant, which notice the defendant received and filed. No point was raised upon the argument that the complaint does not expressly aver that the notice was filed with the clerk of the village, and it is assumed that the filing referred to in the complaint was in compliance with the requirements of the charter, the only point urged being that the notice was not timely, having been filed five days after the accident, instead of within forty-eight hours.
The notice is attached to and forms part of the complaint, and is very specific and precise in its terms. It concludes as follows: “ That the reason this notice has not been heretofore served is that since said injuries to me I have not been in a mental or physical condition to make and prepare statement of same, and this date is the first I have been in condition to furnish a notice and the first that I have been able to learn that a cause of action therefor has accrued to me.”
The time limited in the defendant’s charter for the filing of notice of an intention to sue is probably the shortest ever prescribed by the Legislature, and the question presented is whether, in the event ■of so serious an injury that the victim fails to recover consciousness within forty-eight hours, the Legislature intended he should lose all right of action. Such intention would be entirely inconsistent with the provision giving a whole year within which to commence suit,
In Missano v. Mayor (160 N. Y. 123) and Sheehy v. City of New York (Id. 139) the Court of Appeals has decided with respect to a. similar notice of intention to commence action required by chapter 572 of the Laws of 1886, that a substantial compliance with the statute was all that was necessary. The deviation, it is true, in neither case related to the question of time, but the principle involved is the same. In the Missano case the notice was served upon the wrong official, and in the Sheehy case it failed to state the existence of an intention to sue. The court held in the former case that the provision requiring notice affected, not the cause of action, but the remedy, by regulating the procedure ; and in the latter case that as the notice relates to the remedy, and not to the right, the service of a proper notice under the statute is not strictly a part of the plaintiff’s cause of action. The provision of the charter requiring preliminary notice of an intention to sue attaches only as has been said as a condition precedent to the commencement of an action against the village (Reining v. City of Buffalo, 102 N. Y. 308 ; Curry v. City of Buffalo, 135 id. 366), and if compliance with the condition is rendered temporarily impossible by the wrongful act of the defendant, it would be monstrous to allow the defendant to assert that fact as a defense to the action. The requirement of notice necessarily presupposes the existence of an individual capable of giving it, and not one deprived of that
“ While in an action like this the statute must be substantially complied with or' the plaintiff cannot recover, still, 'where an effort to comply with it has been made and the notice served when reasonably construed is such as to accomplish the object of the statute, it should, we think, be regarded as sufficient.”
The notice in this case was served at the first, moment possible, was accepted by the defendant apparently without question, and, having accomplished the purpose of the statute by furnishing the defendant’s officials with timely notice of the accident and an opportunity for prompt investigation, such service must be deemed under the circumstances to be a substantial and sufficient compliance ■ with the requirements of the law.
The interlocutory judgment should be affirmed.
All concurred.
Interlocutory judgment overruling demurrer to complaint affirmed, with costs. '