103 N.Y.S. 1048 | N.Y. App. Div. | 1907
The plaintiff’s exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.
At the close of the plaintiff’s evidence the court granted a motion ■ for a nonsuit solely upon the ground that there was-a failure to prove that a verified written statement of the nature of the claim and of the time and place at which such injuries were alleged to have been received was filed with the village clerk within six months after the . cause of action accrued as required by section 322 of the Tillage Law (Laws of 1897, chap. 414), which_ provided that the action could not be maintained. unless such a statement was so filed. The plaintiff excepted. It appeared on the trial that the plaintiff went to Olmsted & Walker, attorneys, and employed them in reference to the claim; that Mr. Olmsted made out the statement under the statute and plaintiff verified it and left it with Mr. Olmsted to file with the village clerk, and that Mr. Olmsted caused a carbon copy of the claim to be made, includ- ■ ing the verification, and then filed the copy with the village clerk and retained the original. It was apparently a mistake on Olmsted’s part from not correctly appreciating the statutory provision or mistaking the paper he so filed.' Mo objection was made by the clerk to the filing of the,copy and no request made to file the original instead of the copy.- The plaintiff did not know the copy had been filed rather than the original until the question was raised on the trial and very likely did not know what the statute required anyway. He intrusted the filing to Mr. Olmsted, his counsel. Before the action was brought, Mr. Walker, the law partner of Mr. Olmsted, had become village attorney, and the papers thereupon having been delivered to the plaintiff he employed other counsel and the action was brought. There was no other objection made as to the sufficiency of the filing of a statement under the statute, except that the copy instead of the original was so filed. The statement was sufficient as to form and the filing was in due time. Hnder these circumstances we think there was a substantial compliance with the statute and that the court erred in granting the nonsuit. The filing of a statement was a condition precedent to the maintenance of the action, and there was not a strict literal compliance with the statute in filing the copy instead of the original, but it would, be a miscarriage of justice to deprive the plaintiff of his
In Sheehy v. City of New York (160 N. Y. 139), where asimilar statute was under consideration' and the question involved was the sufficiency of. the statement- or notice, the court in its opinion, among other things, said “ The plain object of this statute was to provide means by which a city could better guard against the imposition of unfounded claims by being at once informed of their existence so that its officers might more readily pursue an investigation of their merits than if longer postponed. On the other hand, it could not have been its purpose to deny to a party in jured by the negligence of a city any remedy against it, nor to unnecessarily' embarrass parties in the enforcement of their rights. ' While in an action like this the statute must be substantially complied with or .the plaintiff cannot recover, still, where an effort to comply with it has been made and the notice served when reasonably construed is such as to accomplish the object of -the statute, it should, we think, he regarded as sufficient.” The judgment of nonsuit and affirmance by the Appellate Division (29 App. Div. 263) was reversed on this ground and a new trial ordered.
In Soper v. Town of Greenwich (48 App. Div. 354), where a - similar statute was under consideration and where the verified statement was required to be presented to the supervisor. of the town and where a copy instead of .the original was .mailed to the town clerk, but was by him delivered to the supervisor; the court held ' the statute was substantially complied with and a nonsuit' upon this ground was erroneously granted. The court said, among other things: “The statute was fairly satisfied by serving upon the supervisor a copy of a claim, which had in fact been duly verified, where the copy purported to show such a verification.” In that . case the original had been lost and was 'riot produced on the trial.
, In Magee v. City of Troy (48 Hun, 383), .where a similar statute was under consideration and where the original verified claim was shown to the comptroller, and a copy was delivered to and left with , him, it was held that the statute was substantially complied with
We do not feel like approving of any relaxation of the rule requiring a reasonably strict Compliance with the statutes- of this kind, but it seems to us, -under the peculiar .circumstances of this case, it should not be held that the plaintiff lias been deprived of his right to maintain this action by a failure to comply with the statute in question.
All concurred.
Plaintiff’s exceptions sustained and motion for new trial granted with costs to the plaintiff to abide the event.
