Lee v. Village of Greenwich, 63 N.Y.S. 160

Lee v. Village of Greenwich

63 N.Y.S. 160 | N.Y. App. Div. | 1900

Kellogg, J. :

The respondent contends that, as to the service of a notice by a claimant, the provisions of the Village Law, which went into effect July 1, 1897 (Laws of 1897, chap. 414), must govern in this case. In this, I think, he is in error. The accident is alleged to have occurred in the month of March, 1897. The notice was filed with the clerk April 9, 1897, and, although the action was not commenced until November following, and after the amendment to the Village Law went into effect, the law as amended did not .affect the right of action if in fact the claimant had previously done what the law then in force required to be done to give a standing in court. This question was so decided by the General Term in Bullock v. Town of Durham (64 Hun, 380).

The condition upon which plaintiff should have a right of action against the village, as stated in section 9 of title 3 of the Village Law of 1870 (Laws of 1870,'chap. 291, as amd. by Laws of 1889, chap. 440), which is the controlling law here, is declared in this language: “ No action shall be maintained against the village * * * unless the claim shall have been presented and notice of the time and place at which such injuries were received shall have been filed'with the village clerk,” etc. And the question here is, did the notice filed April 9, 1897, substantially conform to this requirement as to time and flace f This is a question not entirely free from difficulties. The “ place ” stated in the notice is a sidewalk on “ the street popularly known as *394Barber Avenue ” in the village of Greenwich. The street is something oyer a quarter of a mile long and has a “ sidewalk all the way on south side, and part of the way on north side,” and the stated timé of the accident is “ on or about the 6th day of March.” The occasion of the accident, as alleged in the notice, is “ because Of ice made to form, accumulate and continue upon the sidewalk.” The time fixed is the month of March.- At that season of the year, in this climate, it may be presumed that the condition of the sidewalks in a country village undergoes frequent changes from natural causes. What to-day may be a reasonably safe walk for pedestrians, " may to-morrow be. unsafe, and so become from no censurable negligence on the part of the village or its servants. Some particular places in a sidewalk may any day, from ice and snow, be temporarily unsafe, and the village may not be chargeable with negligence in failing to remove the ice and snow at these particular places. If the notice is designed to answer any useful purpose, by way of calling the attention of the authorities to the actual facts and conditions which existed at the time and place and which'caused the accident, and so aid them in forming a judgment as to settlement, it is plain that such a notice as to accidents of this nature should be, as to “ time ” and place,” specific and not general, and should be as definite and exact as the claimant can reasonably make it. Such a notice is conclusive upon the claimant in any action afterwards brought for injuries sustained ; the time and place cannot be shifted- to suit conditions on other days and at other places.

It seems to me that this is hot such a notice as the law required. “ On or about.” a certain day in such a case is altogether too uncertain and indefinite. Proof under such a notice might be given as to the condition of the sidewalk on any day within a range of many days, and the exact date of the accident might be shifted to. suit the claimant, and to suit the record as to the weather and the proof as to the condition of the sidewalk on any particular day within that wide range of “ on or about.” Neither is the place mentioned in the notice sufficiently definite. Here it is stated to be anywhere on a, sidewalk concededly about one-half mile in length, for it is not stated on which side of this 100-rod- avenue it occurred. It leaves the authorities to guess or search out just where was the place of the accident; they have no power to com*395pel more definite information, and they are called upon to examine a half-mile of sidewalk, and in reaching a reasonable conclusion, as to whether the claim is a just one and should be audited or settled and costs of an action avoided, they must necessarily determine that the entire sidewalk was or was not, at the particular time in every spot, free of ice, or accumulation of ice and snow, which should have been sooner removed. This, it seems to me, is u nreasonable, and practically defeats entirely the purpose of the required notice. There is nothing in the notice filed with the clerk of the village in this case from which the time and place could, with any reasonable certainty, have been discovered or fixed ; and for this reason I do not think the claimant has shown a substantial compliance with the requirement of the statute.

This judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.