17 A.D. 112 | N.Y. App. Div. | 1897
Plaintiff -instituted""this action to recover damages on account of injuries received from a fall on a defective sidewalk on the west. side of Franklin "street, between Genesee and Court streets, in front, of. lands owned and occupied by "the defendant, upon which the High School building is located.. Plaintiff was a trained nurse, and was dependent ripon the compensation received by her for services rendered in that capacity. On the morning of Sunday, February 4, 1894, while on her way to church, and while proceeding" on the "sidewalk in front of the High School building, she slipped and fell, and the" result was .a fracture of her left wrist, known as a “ Colles fracture.” 'The evidence discloses- that the plaintiff "was proceeding carefully along this sidewalk and was exercising such care and; caution as a person of ordinary prudence would have exercised under the circumstances; is'lie thus" fulfilled the duty which the law imposed upon her in passing -along the street. ' (Evans v. City of Utica, 69 N. Y. 166.) .
The corporation counsel makes the claim that the plaintiff should have been nonsuited and that she cannot maintain this action, for the reason that, previous to the commencement of the action, she did not comply-with the statute requiring service upon the corporation counsel of notice of intention to commence the action and of the time and place where the accident occurred. It appears that this action was first brought to trial in April, 1895, and the complaint was dismissed, by direction of the court, after such trial before the court and jury. The dismissal was upon the ground that the notice of intention required by the statute had not been properly served upon the corporation counsel. An appeal from that judgment was taken by the plaintiff, and sticli judgment was reversed and a new trial granted at General Term, and the opinion will be found in 92 Hun, 438. It appears from that opinion that the facts that tile injury sustained by plaintiff was attributable to the negligence of the defendant, and that plaintiff1 was free from contributory negligence were conceded at that trial, and that the only question there presented was, . whether the plaintiff had filed with corporation counsel the requisite" preliminary notice of intention to commence the action. After a full discussion of the question presented to the General Term it. was decided by that tribunal that the notice given by plaintiff1 embraced all that was requisite to comply with the provisions of the law respecting such notice; with that decision we are in full accord.
The judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.