304 N.Y. 440 | NY | 1952
Lead Opinion
Plaintiff, a laborer over sixty years old, injured when a city-owned trolley in which he was a passenger collided with a truck, went to the Municipal Building in order to make known his claim against the City of New York. He was there given a notice of claim form and also, according to defendant, an instruction sheet stating that the completed form should be sent to the comptroller’s office by registered mail. Well within the sixty-day period then prescribed for service of the notice of claim, plaintiff sent the notice to the comptroller, but by ordinary mail. Despite this irregularity in the form of service — subdivision 3 of section 50-e of the General Municipal Law then provided that the notice was to be delivered “ personally, or by registered mail ’ ’ — the comptroller, before the sixty-day period had elapsed, responded to plaintiff in a letter notifying him to appear for examination. The examination was subsequently held. However, plaintiff’s action thereafter brought against the city has been dismissed upon the ground that his notice of claim had been transmitted by ordinary mail, contrary to the provisions of section 50-e.
Since the city neither returned the notice, nor at any time ' objected to the manner in which it had been served until after the commencement of the trial, the statutory requirement of
Instead of returning the regularly mailed notice — which Avould have given plaintiff an opportunity to serve it properly Avell Avithin the statutory period — or simply ignoring it, an executive officer of the city actually informed plaintiff that his notice had been received and then proceeded to hold an examination in connection Avith the claim. Thus, present here, in addition to an unequivocal waiver, are elements of estoppel as well. In Sweeney v. City of New York (supra, 225 N. Y. 271, 273) the court said, Avith respect to a predecessor provision of section 50-e, that the statute “ is not a trap to catch the unwary or the ignorant.” In reaching our present conclusion, we but reaffirm that view.
The judgments should be reversed, with costs in all courts, and the motion to dismiss the complaint denied.
. The section was subsequently amended (L. 1951, ch. 393) to provide that “if service of such notice be made within the period prescribed by this section, but in a manner not in compliance with the provisions of this subdivision [service by registered mail or personally], such service shall be deemed valid if such notice is actually received by such person, officer, agent, clerk or employee and such party against whom the claim is made shall cause the claimant * * * to be examined in regard to such claim.”
Dissenting Opinion
(dissenting). Following injuries which befell the plaintiff, G-iacinto Teresta, Avhile a passenger in a trolley car operated by agents of the City of Nbav York, he Avent personally — without advice of counsel — to various city agencies in an effort to present his claim against the municipality for the
Although obviously the <£ manner * * * of service ” chosen by the plaintiff did not conform with the requirement of the statute quoted above, it is the view of a majority of the court that when the city failed not only to return the plaintiff’s notice but also failed — until the trial— to object to the manner in which it had been served, and meantime conducted a pretrial examination of the plaintiff, the statutory requirement of service of the claim ££ personally, or by registered mail ” was thereby waived.
Technical though the city’s resistance to this claim may be, it is technical only to an extent clearly warranted by a separate provision of section 50-e id., viz., subdivision 6, which provides in part: ££ * * * a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby ” (italics supplied).
If the words italicized in the statute last quoted above do not declare the Legislature’s intention thereby to prevent a waiver by a municipality of the ££ manner ” expressly prescribed in subdivision 3 of section 50-e id. for service by a claimant of his notice of claim, one is at loss to know what could better record that intent.
Nor is the plaintiff’s position reinforced if, as he claims, the city was not prejudiced by the irregular manner he chose to serve his claim. Upon that phase of the case the statement by Judge Pound writing for the court in Ponsrok v. City of Yonkers (254 N. Y. 91, 95), has peculiar application to the case we now review —1 ‘ The fact that the city has not been prejudiced is immaterial. The court may not exercise a dispensing power based on the principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with.” (See, also, Purdy v. City of New York, 193 N. Y. 521, 524-525; 4 Dillon on Municipal Corporations [5th ed.], § 1613, pp. 2814-2817.)
Believing, as I do, that “ A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration ” (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639; People v. Olah, 300 N. Y. 96, 102), and finding in the statute here involved an expression of legislative intent opposed, in my view, to the decision about to be made herein, I dissent and vote for affirmance.
Lougkhran, Ch. J., Conway, Desmond and Froessel, JJ., concur with Fuld, J.; Lewis, J., dissents in opinion in which Dye, J., concurs.
Judgments reversed, etc.
