18 N.E.2d 13 | NY | 1938
Section 26 of title III of the Charter of the City of Poughkeepsie (Laws of 1896, ch. 425, as amd. by Laws of 1910, ch. 632, and Laws of 1911, ch. 685) provides: "All accounts and claims against the city *156
* * * shall be duly verified. * * * and the common council shall hear and determine the same. No action upon any account or claim shall be brought against the city until it shall have been rejected by the common council." The complaint does not allege compliance with the charter provision. The answer alleges non-compliance as a defense. The burden of proof to establish compliance with the provision of the charter rested on the plaintiff. Plaintiff was bound to allege and prove compliance as a condition precedent. (Reining v. City of Buffalo,
The official referee before whom the case was tried found as a fact that the plaintiff "made no claim or demand" on the city "except the present action." It is apparent that the question was called to the attention of the Appellate Division, as it reversed that finding of fact although the record does not contain evidence justifying such reversal. In fact, it is conceded in this court that no claim was filed by the plaintiff as required by the city charter.
The judgment of the Appellate Division should be reversed and that entered upon the decision of the referee affirmed, as the complaint should have been dismissed for the reason stated, with costs in this court and in the Appellate Division. We do not pass upon the construction of the contract.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Judgment accordingly. *157
