117 N.Y.S. 612 | N.Y. App. Div. | 1909
In 1907, section 261 of the. Greater New York charter was amended by adding a provision that in cases of claims against the city for damage for injury to personal property, or the destruction thereof, occasioned by' the' negligence of the city, no action therefor should be maintained unless notice of- an intention to commence such action, together with other details, “ shall have been tiled witli the comptroller^ of said city within six months after such cause of action shall have accrued.” (Laws of 1901, chap. 466, § 261, as amd. by Laws of 1906, chap. 550, and Laws of 1907, chap. 677.) This amendment became operative prior to.the occurrence upon ' which the plaintiff bases this action, which is brought to recover damages for the killing of a horse and partial destruction of a wagon, owned by plaintiff, through defendant’s alleged negligence. The complaint is oral, and is stated to be “damages to personal
The allegation of the filing of the claim with the comptroller and the personal examination of the plaintiff were required by-the charter before the amendment in 1907, and it is plainly apparent that an additional condition precedent to maintaining an action in this class of cases was intended by the Legislature. After the amendment, the complaint was fatally defective because of the omission to allege service of the notice on. the - comptroller; this was a condition precedent to maintaining the action, and must be averred, or a cause of action is not alleged. (Krall v. City of New York, 44 App. Div. 259; Gmaehle v. Rosenberg, 80 id. 541; Curry v. City of Buffalo, 135 N. Y. 366.) The contention that the filing of the notice with the corporation counsel met the requirements of the statute is without merit in the absence of proof that such notice was acted upon by the comptroller (Sheehy v. City of New York,
The motion to vacate and set -aside the judgment was properly denied. The court was without jurisdiction ■ to grant the relief sought, and the judgment and order of the, Municipal Court must he .affirmed, with costs. '
Present — Hirschberg, P. J., .Woodward, Burr, Rich and Miller, JJ.
. Judgment and order of the Municipal Court unanimously affirmed, with costs. . -
Laws of 1902, chap. 580.— [Rep,