113 Misc. 404 | New York Court of Claims | 1920
During the years 1918 and 1919, the claimants owned and operated a farm in the town of Ridgeway, Orleans county, in this state. Their land is bounded on the south by the Erie canal. In the late summer of 1918, and subsequent to August thirteenth of that year, the water level ,in the' canal was raised about eighteen inches, and, due to the defective condition of the bank adjacent to the claimants-’ premises, the coping of which had slid into the canal bottom, the water of the canal percolated and leaked through the bank upon the claimants’ fields, damaging certain of the crops then growing on them. On the trial, the claimants proved the filing of a purported notice of intention, in the office of the clerk of this court. At the end of the body of this notice, and preceding the verification, the claimants ’ names appeared typewritten. Then followed the verification subscribed in writing by the claimant, Samuel J. Hood. The attor
The claimants’ attorney endeavored to prove the subsequent filing of another notice of intention, within the statutory period, to meet this contention of the state, but we are unconvinced by the evidence which he proffered that this was done. In our view of the case, however, such additional filing was unnecessary and would have been surplusage.
The objections urged by the state are without merit. The statute provides that the claimant shall file “ a written notice of intention * * *, which claim or notice shall be signed and verified by the claimant * * Code Civ. Pro. § 264. The claimants argue that if we were to treat the notice of intention filed as a copy and not as an original, and the only basis for that assumption is that the names of the claimants at the end of the body of the instrument were typewritten, the filing still would be sufficient. It is unnecessary for us to discuss that proposition because of considerations hereinafter made evident.
As we have stated, there is no evidence requiring us to treat the paper as other than an original notice. As an original notice, it fulfills all the requirements of the statute. The signature of the claimants 'by. them, or in their behalf, in typewriting, was sufficient. A signature so made may be printed or typewritten with the same effect as though handwritten. Mutual Life Insurance Co. v. Ross, 10 Abb. Pr. 260, and note; Barnard v. Heydrick, 49 Barb. 62. But the typewritten signatures may be disregarded entirely and the notice still was “ signed and verified ” by the claimant, Samuel J. Hood. His signature, not denied to be
We believe, quite aside from analogy with the rule regulating verification of pleading®, that this notice substantially complied with the statute. It gave the state the notice intended. That notice was timely, in writing, and, regardless of the typewritten names of the claimants it was signed and verified by the claimant, 'Samuel J. Hood. This gave to the notice the dignity and the solemnity necessary to obligate the state and its officers to act upon it, if the interests of the state were to be protected. Nothing in these respects could have been added to the instrument by
Claimants’ motion to amend their notice of intention and claim, made at the close of the trial, “ by conforming the pleading to the proof,” decision upon which was reserved, is hereby denied, with an exception to the claimants. The motion and amendment appear to us to be unnecessary, and we find the proposed amendment not to be conformable to any evidence whatever in the case. If the amendment had any effect at all, it would substantially change and alter the claim.
The claimants should have an award for the damages suffered.
Ackerson and Morschauser, JJ., concur.
Award accordingly.