Wagner v. City of New York, 145 N.Y.S. 683

Wagner v. City of New York

145 N.Y.S. 683 | N.Y. App. Div. | 1914

Hotchkiss, J.:

On September 29, 1912, plaintiff was walking up Broadway, and had reached the northerly side of Mail street, where the surface was disrupted by subway work, when she stepped into a hole adjacent to the temporary wooden crossing at that point and fell. In describing the hole she said, “ it was. broken asphalt with dirt on it, * * * about 6 inches deep in the middle part where I fell,” but when asked to describe it particularly, she said, “ all I can remember is the broken asphalt with dirt in the bottom; ” then, when pressed further, she repeated it was about six inches deep in the part where she fell and may be “ a couple of foot ” broad.

*587Solomon, a post office employee sworn for plaintiff, testified that there had been jagged holes in that vicinity for some time and that within two or three feet of the scales (at about the southwest corner of City Hall Park) there was one five inches deep and two feet on each side, according to his estimate. He did not know where plaintiff fell. No previous accident was shown. This was substantially all the testimony. The case falls within Lalor v. City of New York (208 N. Y. 431), and also Vanderborg v. City of N. Y. (158 App. Div. 297). Plaintiff filed no notice of intention to sue with the corporation counsel. At the trial she was permitted "to amend in this regard. To support her amendment she proved due service of notice of claim on the comptroller, which notice she argues must have reached the corporation counsel because she was afterwards examined at the instance of the comptroller, and within the time when her notice should have been served on the corporation counsel.

The notice of claim served on the comptroller contained no notice of intention to sue and was clearly insufficient to satisfy the- statute in that regard. (See Laws of 1886, chap. 572; Greater N. Y. Charter [Laws of 1901, chap. 466], § 261, as amd. by Laws of 1912, chap. 452; Id. § 149, as amd. by Laws of 1912, chap. 398.) In this respect the case is essentially different from Missano v. Mayor (160 N. Y. 123).

The determination appealed from and the judgment of the Municipal Court should be reversed, and defendant’s motion to dismiss the complaint granted, with costs in all courts'.

Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and Dowling, JJ., concurred on the second ground.

Determination and judgment reversed and defendant’s motion to dismiss complaint granted, with costs in all courts. Order to be settled on notice.