43 N.Y.S. 455 | N.Y. App. Div. | 1897
The record before us seems to fairly establish the fact that the plaintiff.received the injuries of which he complains at the time and place testified to by him and his witnesses, and that such injuries were the result of a defective- condition of the sidewalk at the point where he tripped and fell. But there is no evidence in the case, nor was any attempt made upon the trial, to establish the fact that the defendant had received actual notice of the defective condition of this walk. Some evidence, however, was given tending to show that the stringers upon which the planks rested were more or less decayed, and that the planks themselves had been loose for several weeks prior to the day the accident occurred. The evidence upon .this branch of the case is not, perhaps, sufficient to carry absolute conviction to one who reads it in print, but we are inclined to think, upon the whole, that if regarded as credible by the jury, it was of a character to justify them in drawing the inference that the walk had been in a defective condition for such a length of time as to require the municipal authorities to take notice of that fact, within the rule laid down by the learned trial justice, defining constructive notice. And as the jury had the witnesses before them, and were thereby enabled, as we are not, to determine just what weight should be given their evidence, we are disinclined to interfere with their v.er-dict, even though it may riot be in entire harmony with our views
It is insisted that'the plaintiff cannot maintain his action, for the reason that it was not brought within one year after the accident occurred. And in support of this contention recourse is had to chapter 572 of the Laws of 1886, section 1 of which reads as follows, viz.: .
“Ho action against the mayor, aldermen and commonalty of any city in this State, having fifty thousand 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.”
It would undoubtedly be a sufficient answer to this proposition of the learned counsel to suggest that the. limitation imposed - by the statute just quoted is not pleaded in the answer as a defense to the action, but for the fact that, for some reason which does not clearly •appear, such omission was not adverted to when the question was raised upon the trial, in consequence of which it is claimed that the same has been waived by the plaintiff, and cannot now be considered..
We entertain serious doubt as to whether or not the claim that this objection has been waived can be sustained. But, without •determining that question, we have reached a conclusion adverse to the defendant’s contention, and are content to rest our decision "upon the ground that the statute of 1886, although general in its ■application to cities of a specified class, to which class the defendant unquestionably belongs, has, nevertheless, no relation to the case in hand, for the reason that the Legislature has by express enactment provided another and a different limitation as to actions to recover damages for personal injuries against this particular defendant.
The charter of the city of Syracuse, as revised and amended by chapter 26 of the Laws of 1885, contained this provision, viz.:
“ § 250. The city of Syracuse shall not be liable iii a civil action for any injury resulting from a defective condition in or upon any sidewalk, unless written notice of the injury, specifying the time and*591 place where the samé was received, shall be served on the mayor or city clerk within six months after the injury was received, nor unless an action shall be commenced within one year after the service of such notice.”
The act of 1886 did not in express terms repeal this section, nor is there anything in its language which discloses an intention upon the part of the Legislature to amend or modify the same, and the case, therefore, even upon this state of facts, would seem to come within the rule that a special and local statute is not repealed or amended by a statute general in its terms, unless the intent to repeal or alter is manifest, although the general act would, but for the special law, include the cases provided for by the latter. (In re Comrs. of Central Park, 50 N. Y. 493; McKenna v. Edmundstone, 91 id. 231; People ex rel. Van Heck v. N. Y. C. Protectory, 101 id. 195, 200; Buffalo Cemetery Assn. v. City of Buffalo, 118 id. 61; Boechat v. Brown, 9 App. Div. 369.)
We are not unmindful of the defendant’s contention that this case furnishes an exception to the rule adverted to, nor have we overlooked the case of Dobson (Matter of Dobson, 146 N. Y. 357), which at first glance appears to sustain such contention. It will be found, however, upon a more careful examination, that the Dob-son case is easily distinguishable from the one under consideration in several essential particulars, which we deem it unnecessary to refer .to with more particularity, inasmuch as there is another and perhaps a stronger reason why the general act should be regarded as inapplicable to the city of Syracuse, arising from the fact that subsequent to its enactment, and in 1888, section 250 of the defendant’s charter was amended and modified, but the provision requiring notice of an injury to be served upon the mayor or city clerk within six months after the same was received, and an action for such injury to be commenced within one. year after the service of such notice, was re-enacted. (Laws of 1888, chap. 449.) It must be assumed that the Legislature in this, as in every similar case, acted deliberately and with full knowledge of existing statutes, and, if so, it necessarily follows that in re-enacting this provision of its charter it intended to perpetuate a local and special law for the government of this particular municipality instead of subjecting it to the provisions of the general act. (Ely v. Holton, 15 N. Y.
It is not disputed that the plaintiff served the proper notice upon the mayor, and city clerk within six months after receiving his injury, nor that this action was commenced within one year after such notice was so served. Strict compliance with the requirements of the charter being thus established, we are unable to discover any reason why - the judgment and order appealed from should be reversed.
The judgment and order should be affirmed,, with costs.
All concurred, except Green, J., dissenting.
Judgment and order affirmed, with costs.