12 N.Y. St. Rep. 674 | New York Court of Common Pleas | 1888
The object of the enactment in question is manifest; it is to enable the counsel to the corporation to make such inquiries into the circumstances of any accident which is to be made the basis of an action against the city, as may be necessary to prepare a defense to such action. It is an enactment of a different character from that which requires the presentment of the claim to the comptroller at least thirty days before the commencement of the action (Consol. Act 1882 § 1104).
The object of the latter statute, as appears from its terms, is to give an opportunity to the financial officer of the city to examine the validity of the claim presented and by adjustment or payment thereof to avoid the expense of an action. The statute of 1886 was intended to prevent the mischief that might ensue from the plaintiff’s delaying to bring his action for injuries until so long after the alleged occurrence that the means of preparing a defense might be lost or greatly impaired. The legislature evidently deemed that a notice given within six months would fully protect the interests of the city; and it is a fair inference that if the time to bring actions in such cases were limited to six months no-notice would have been required.
We are to look at the mischief to be remedied and the remedy adopted in order to ascertain the .application of a new statute ; and if, as seems reasonable, the mischief to be remedied was that pointed out above, and the remedy adopted was to give the city notice within six months of the happening of the accident of the intention to bring suit therefor, then it would seem that the statute was not intended to apply where the action is commenced within the six months by the service of the summons and complaint
It will be observed that the statute does not require that any period of time shall elapse between the filing of the notice and the commencement of .the action; so that the notice may be filed one day and the action commenced the next, or on the same day, or even at the same time; for the only requirement of the statute is that the notice must be filed within six months after the cause of action has accrued. If, then, the action may follow so closely upon the heels of the notice that there shall not be any appreciable lapse of time between them, the filing of the notice in that case seems an idle ceremony; and I think it is so where the action is commenced in the manner I have stated within the six months; and therefore I conclude that the legislature could not have intended it in any such case, but only in those where the bringing of the action is delayed beyond the six months’ limit.
In this case the plaintiff’s action was commenced by the voluntary appearance of the defendant, by the counsel to the corporation, after the latter had received the summons and complaint, and this was all before the expiration of six months from the time of the accident for which the plaintiff claims damages. There was, I think, a substantial compliance with the statute, in that the summons and complaint were left at the corporation counsel’s office before the notice of appearance was given. A copy of the proposed summons and complaint conveys all the information which the statutory notice is designed to give. It is true that in this case the plaintiff did not intend the papers as such notice, for the action was commenced within so short a time after the passage of the act in question that his attorneys were not aware of the requirement; but if the statute were in fact complied with, the intention of the attorneys cannot undo the act. But I think that, for the other reason given, the judgment should be reversed and a new trial ordered, with costs to abide event.
Judgment reversed and new trial ordered, with costs to abide event.
