Maisch v. City of New York

118 N.Y.S. 908 | N.Y. App. Div. | 1909

Burr, J.:

This action was brought in the Municipal Court to recover damages to personal property by reason of the overflow of a sewer. The pleadings were oral. After the jury had been impaneled and counsel for plaintiff had opened his ease and a witness had been sworn, and while he was being examined, the corporation counsel interrupted the examination and stated: “ I move to dismiss this action on the ground that there is no complaint indorsed on the summons or the docket of this court as required by section 145 of the Municipal Court Act.” The motion was denied and an exception taken. Section 145 of the Municipal Court Act provides, among other things (subd. 1): “ Where the action is commenced by the service of a summons only, the pleadings may be oral, and the substance thereof shall be endorsed upon the summons and entered in the docket book of the court.” As appears from the return, a sheet of paper was attached to the summons, with printed forms thereon, suitable to be filled up and used under various circumstances, as when the action was tried before a jury and verdict rendered for the plaintiff, or when a judgment of discontinuance was entered, or when a judgment on inquest was rendered for the plaintiff, or when a judgment was rendered for the defendant dismissing the complaint without prejudice, on defendant’s motion, at the close of the plaintiff’s case, or where judgment was rendered after trial on the merits. On the back of this was another printed form headed: “ Proceedings on return of summons,” which contained, among other things, the word “ complaint.” Following this were the written words “ Damages to personal property.” This was an indorsement upon the summons, within the meaning of the section of the Municipal Court Act above referred to. (Thurman v. Cameron, 24 Wend. 87.) The words “ Damages to personal property ” were a statement of the substance of the complaint, within the meaning of the act. The defendant asked for and obtained a bill of particulars before proceeding to trial, so that he was fully advised as to the cause, nature and extent of plaintiff’s claim. There is no evidence as to what, if any entry was made in the docket 'book of the court as to the substance of the complaint, and every intendment must, therefore, be in support of the judgment. The motion to dismiss the complaint upon, this ground having been denied, the corporatioii counsel thereupon moved to dismiss the' complaint “on the ground that it does not state facts sufficient to establish a cause of action, and further, that the complaint does not comply with section 261 of the Charter.” This section provides that “No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the City of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he -has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.” (See Laws of 1901, chap. 466, § 261, as amd. by Laws of 1906, chap. 550, and Laws of 1907, chap. 677.) The pleadings having been oral, it does not appear what if any statement was made respecting the plaintiff’s cause of action. No defect was specified as a ground of the motion except the failure to allege in the complaint compliance with the provisions of the section of the charter above quoted. But the parties had already stipulated upon the record at the commencement of the trial that the notice of claim in the action was served on the comptroller on the 20th day of. January, 1905, and that the notice of intention to sue was served on the corporation counsel on the same day; it appears that the summons was served on the 4th day of December, 1908. If the complaint was originally defective in respect to the allegation of service of notice on the comptroller and the expiration of the time required before commencing suit, it could have been amended in the Municipal Court to conform to the proof already in the case (Mnn. Court Act, § 166), and it may now be amended if necessary to sustain the judgment. (Mun. Court Act, § 20; Code Civ. Proc. § 2944; Runge v. Esan, 56 N. Y. St. Repr. 409.)

The judgment of the Municipal Court and the order denying the motion for a new trial should be affirmed, with costs to the plaintiff respondent.

The plaintiff also appeals from an order of the Municipal Court correcting the date of the entry of the judgment. At the close of the trial, which was held on the 29th of January, 1909, and after the jury had rendered a verdict in favor of the plaintiff, the defendant made a motion for a new trial on the ground that the verdict was contrary to the law and against the weight of the evidence, and upon all the grounds contained in section 999 of the Code of Civil Procedure and section 254 of the Municipal Court Act. The Municipal Court justice reserved his decision upon the said motion.

On the fourth day of March lie made his decision denying such motion. Notwithstanding the pendency of the said motion, immediately after the rendition of the verdict and on the 29th day of January, 1909, the clerk of the Municipal Court entered judgment in favor of the plaintiff and against the defendant. After the decision of the motion for a new trial, the learned corporation counsel for the first time discovered that such judgment had been entered, and immediately moved to amend the same as to the date of its entry. This motion was granted, and from the order granting it the plaintiff appeals.

It was within the power of the Municipal Court to grant the relief asked for. (Mun. Court Act, § 1, subd. 19 ^*; Id. § 20.) It was in the interest of justice that the date of the entry of the judgment should be corrected. It was improperly entered while the motion for a new trial was pending, and unless corrected, the defendant’s time to appeal from the judgment would have expired. The provision of section 254 of the Municipal Court Act that a motion to amend a judgment must be made within five days from the time the judgment was rendered applies to motions made under the provisions of that section.

The order appealed from should be affirmed, with costs to the defen dan t-respond en t.

Jenks, Gaynor, Rioh and Miller, JJ., concurred.

Judgment of the Municipal Court and order denying motion for a new trial affirmed, witli costs to the plaintiff. Order correcting the date of the entry of the judgment affirmed, with costs to the defendant.