114 N.E. 70 | NY | 1916
This action was brought by plaintiff to recover damages for personal injuries claimed to have been sustained by reason of a defective sidewalk, and a judgment has been rendered in her favor. Concededly, the statute explicitly and peremptorily required that as a condition precedent to the commencement of her action to recover such judgment she should serve "notice of the intention to commence such action and of the time and place at which the injuries were received," by filing the same "with the counsel for the corporation or other proper law officer * * * within six months after such cause of action * * * accrued." She attempted to comply with this requirement by filing a notice wherein she stated that the time of the accident was August 20, 1912. On the trial, notwithstanding the due and timely objections and motion of the defendant, she was allowed to recover under such notice on evidence which showed that the accident happened August 28, 1912. Intermediate the service of the notice and the trial she had been examined by the corporation counsel and had stated that the accident occurred August 28th, but subsequent to such examination she had served her complaint in which she had alleged that the accident occurred on the date mentioned in her notice, to wit, August 20, 1912. The trial judge submitted it to the jury to determine as a question of fact whether her notice with its *181 erroneous statement of the time of the accident was a substantial compliance with the statute and this was duly excepted to by the defendant's counsel who insisted that this was not a question of fact but that it should be held as a matter of law that substantial compliance with the statute had not been effected.
Various theories are advanced for the purpose of relieving plaintiff from the blunder affecting her notice. It is argued that the notice described the place of the accident and specified a time when the accident was alleged to have occurred and that there was, therefore, no defect in the form of the notice, and some distinction seems to be attempted between a notice which is "insufficient in form" and one which is sufficient in form but contains an "error in fact," in that it inaccurately states the alleged date of the accident. I am not able to adopt any such theory as this. The statute by its terms makes the statement of the time of the accident just as important as the statement of the place of the accident and the results of the failure to comply with this requirement because of an erroneous statement of the date of the accident cannot be avoided by saying that the notice is correct in form although erroneous in fact. All the cases on the subject fully recognize either directly or by implication the necessity not only of a statement of the date of the accident but also of a substantially correct statement of that date. (Foster v. City of New York,
In the next place the argument is advanced that although the date of the accident was incorrectly stated the defendant suffered no harm therefrom and, therefore, that the error may be disregarded.
It is argued on this point, "If * * * the inaccuracy did not mislead the defendant or result in any respect to its prejudice, it should not be regarded as insufficient." Again, I think that this statement is not in accordance with the decisions of this court but directly opposed thereto; that the effects of a failure to comply with the statute requiring service of this notice were neither tested nor avoided by the fact that the city has not suffered in consequence of such error. And first in this connection, there ought to be corrected the impression that plaintiff fully advised defendant by her examination under the statute that the date finally given on the trial was the correct time of her accident. As has been stated, subsequent to the time when she was thus examined and gave a date corresponding with that given on the trial she served her complaint in which she reverted to and alleged the original, incorrect date of August 20th. Therefore, by her last and controlling word on this subject the defendant was authorized to believe that after all the correct date was August 20th and that that would be the one which it was compelled to meet on the trial. Under all of these circumstances the law is perfectly clear that a claimant is not relieved from failure to comply with the statute because he has been examined as to the details of his claim or because it might be supposed that the defendant has not suffered from a mistake in the notice.
In Winter v. City of Niagara Falls (
In Forsyth v. City of Oswego (
In Purdy v. City of New York (
In Cotriss v. Village of Medina (supra) the plaintiff failed to comply with the requirement of a statute that verified claims for damages for personal injuries resulting from defective streets should be served. It was claimed that plaintiff's failure to verify her notice did not result in any injury to the defendant and, therefore, should be overlooked, but it was said in respect of this claim: "It may be that the omission to present the proper writing or statement to the board did not result in any damage to the defendant. That is not the test. The requirement is absolute, and the question of whether injury resulted from the failure to comply with the explicit mandate of the statute is not open to proof or inquiry. If so, these and similar provisions intended to safeguard municipalities against the imposition of unjust claims would be nullified." (
In Casey v. City of New York (
As I have stated, I know of no difference in binding effect between the requirements of the statement in such a notice of the time and of the place and it seems to me that under the cases which have been cited the plaintiff is not excused either on the ground that there has been a waiver of a requirement of the statute or that the defendant has not suffered as the result of her mistake.
The cases of Sheehy v. City of New York (
In the Sheehy case the only claim was that the notice was deficient in failing to state in explicit terms an intention to commence an action, and it was held that it fulfilled the purpose of the statute by informing the corporation counsel of the nature of the claim, the place where and the circumstances under which it arose and of a purpose to enforce it — a very different case as it seems to me than one where the plaintiff has failed to make a correct statement of the time or place of an accident.
In the Walden case it was simply held that plaintiff should not be deprived of his right to bring an action because of his failure within forty-eight hours to serve notice stating the place where the accident occurred when it appeared that literal compliance with the *186 statute was impossible because of plaintiff's physical condition and notice was in fact served within seventy-two hours after the accident happened.
So, as it seems to me, we come to the only possible theory on which plaintiff can ask to be relieved of her error in the statement of the time of the accident, and this is the one that her notice was a substantial compliance with the statute. I think it was error for the court to submit this question as one of fact to the jury. (City of Fort Wayne v. Bender, [Supreme Court, Ind.]
It is also true that it has been held in various cases that a notice stating that the accident occurred "on or about" a certain date would be regarded as a sufficient compliance with the statute when the date stated was the one on which the accident actually occurred. (Murphy v. Village of Seneca Falls,
When, however, we pass these cases and come to those *187 dealing with a clear misstatement of the date of the accident we find that an error of ten days or less in the notice of an accident has been held fatal and not to be excused upon the theory of a substantial compliance.
In the Ouimette case, already cited, there was an error in the statement of the date of a month, and, of course, that was so much more serious than the one now before us that the case is not a controlling authority. Nevertheless, there will be found in the opinion a discussion which impliedly upholds the proposition now being advanced that the error in this case is too serious to be overlooked.
In Gardner v. City of New London (
In Taylor v. Peck (
In the very well-considered case of City of Fort Wayne v.Bender, already cited, an error of ten days was held to be fatal.
In a large city like New York it is of the utmost importance that its officials should be accurately informed concerning the alleged date and location of an accident. Paraphrasing the language used by Judge POUND in the Casey Case (supra) it is essential that they should know not only when an accident happened, but also when it will be claimed that it happened, and if it should be held that after preparation has been made to meet the claim of an accident on a date stated in the notice and complaint, a plaintiff may suddenly on the trial transfer his claim to a date eight days later, it is perfectly evident that the requirements of the statute will have been so emasculated that not much virility will be left.
If it should be thought that this interpretation of the statute may at times result in unnecessary hardship to a litigant where an amendment of the notice might be allowed without injury to the municipality this method of relief rests with the legislature through amendment of the statute.
I recommend that the order and judgment of the *188 Appellate Division be reversed, with costs in both courts, and judgment of Trial Term affirmed.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, HOGAN and CARDOZO, JJ., concur.
Judgment and order reversed, etc.