Learned v. Mayor of New York

48 N.Y.S. 142 | N.Y. Sup. Ct. | 1897

McAdam, J.

The complaint was dismissed at the close of the plaintiff’s case because she did not comply with chapter 572 of the Laws of 1886, in respect to the contents- of the notice required to be served as a condition precedent to the right to maintain an action against the municipality. The statute provides that “Ho action against the mayor, aldermen and commonalty of any city in this state having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained.by reason of the negligence of such mayor, aldermen- and commonalty, or of any. department, board, officer, agent or employee of said corporation, 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 the intention to commence such action and of the time and place at which the injiiries were-received shall have, been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall- have accrued.” The plaintiff before bringing action,' and within the time prescribed, served upon the counsel to the corporation a notice of intention to sue, in which it was. stated that the injuries were-received on the sidewalk “immediately adjacent Hos. 164 and 166 West One Hundred and Thirty-first street.” At the trial it appeared that the injuries were sustained in front of premises Eos. 264 and 266 West One Hundred and Thirty-first street, on the block west of that in which are the numbers specified in the notice. The notification does not state the avenues between which the accident occurred, so-that there is nothing on its face from which clerical error in locating the place could be inferred. The notice, therefore, in effect directed the municipal authorities to go to the sidewalk immediately adjacent to Hos. 164 and 166 West One Hundred and Thirty-first street, and they would there find the defect and cause of injury for which the municipality was sought to be held, when in fact nothing was there to indicate neglect or ground of responsibility. The notice was misleading, and not such as the statute contemplated. To hold it sufficient would defeat the very object of the legislature, which was to protect the municipality from claims like the one made, by enabling its officials to..examine the locus in quowithout delay, obtain witnesses, and make diagrams or photographs-of the place, to be used in case they determined that the claim ought to be resisted. The statute is mandatory that the notice shall state- “ the time and place at which the injuries were received,” and that no action shall be maintained against the municipality unless such notice shall have been given; and such notice is in the nature of a condition precedent to the right of recovery. Reining v. City of Buffalo, 102 N. Y. 308; Curry v. City of Buffalo, 135 id. 366. Where the language of a statute is definite and has a precise meaning, it must be presumed to declare the intention of the legislature,- and it is not allowable to go elsewhere in search of conjecture to-restrict or extend its meaning. Johnson v. Hudson River R. R. Co., 49 N. Y. 455; People v. Supervisors, 11 Abb. N. C. 421; Cook v. Kelley, 12 Abb. Pr. 35. The complaint in such an action must,therefore, allege the service of the notice; and if denied, the-plaintiff must prove it to establish a right of action. Foley v. Mayor, 1 App. Div. 586; Curry v. City, supra; Reining v. City, supra; Bayl. Code Pl. 38. Myer v. Mayor, 14 Daly, 395, which decides that the act in question does-not apply where the action is commenced within six months by theseevice of a summons and complaint, is in direct conflict with Curry v. Mayor, supra, and the principles of the other cases cited, and must, therefore, be considered as overruled by them. It is also-inapplicable because the complaint herein was not served within six but about ten months after the accident. The complaint does-not aid the notice, although it has the merit of stating correctly the place where the accident occurred. It alleges “ that within six months after the cause of action sued on herein accrued notice of the plaintiff’s intention to commence this action, and of the time and' place at which her injuries were received, was filed with the counsel to the defendant corporation.” A good complaint does not cure a defective notice, when the latter is the foundation upon which the right to maintain the action depends. Heither does the answer help . the plaintiff. The defendant “admits that on or about the 21st day of June, 1894, there was filed in the office of the counsel to the corporation a paper purporting to be a notice of intention to commence this action; ” and the fourth paragraph “ denies that it ” (the defendant) “ has any knowledge or information sufficient to form a belief as to any of the allegations in said complaint contained nothereinbefore specifically admitted or denied.” This form of denial is permissible, and .serves'.to put in issue all the allegations in thé complaint not specifically' admitted or denied. Griffin v. Long Island R. R. Co., 101 N. Y. at p. 354; Crane v. Crane, 43 Hun, 309; De Graaf v. Wyckoff, 13 Daly, 366. The defendant could not truthfully deny, and, therefore,' admitted, that the plaintiff had served a paper which purported to be a notice of intention to commence the action.- The admission goes no further, for the defendant by its denial put in issue the form and'sufficiency of the • paper as alleged in the complaint, and required the plaintiff to prove that the notice served was such as the statute required, "and in this for the reasons stated, she materially failed. It is not a case where' the plaintiff was misled by the-form of the answer from furnishing the proof necessary to the maintenance of her action, for the notice served was produced and offered in evidence, and it is the unamendable defect therein which prevents her recovery. The cases relied on by the plaintiff do not touch the point involved here. In Grogan v. City of Worcester, 140 Mass. 227, and Canterbury v. City of Boston, 141 id. 215, the notice to the municipal authorities correctly stated the time and place of the injury, and was objected to on the ground that the facts respecting the nature and cause of the injury were not stated with sufficient particularity; but it was held to be sufficiently explicit under the Massachusetts statute. In Magee v. City of Troy, 48 Hun, 383, the notice was correct in form, but a copy was served instead of the original, and the court (at p. 386) said: “The original claim, signed and verified' by the plaintiff, was shown the comptroller, and a copy of it delivered to and left with him.- We think this was a sufficient presentation of the claim in the absence of any objection by the comptroller or demand of the original. The comptroller thus obtained the notice the law contemplates.” In this instance the defect was not one apparent on the face of the paper, so as to call for any affirmative act on the part of the municipality or to charge it with waiving the defect by retaining the paper. ' It related not to matter of form but of substance, and was of so serious a character as to destroy the statutory purpose of the notice. There was clearly no waiver, because that implies knowledge, and knowledge cannot be imputed to the defendant. The nonsuit was properly directed, and the motion for a new trial must be denied.

Motion denied.