28 N.Y.S. 226 | N.Y. Sup. Ct. | 1894
This action was brought to recover damages for personal injury, and for injury to property. Section 80 of the charter of the city of Rochester, as amended by the Laws of 1890 (chapter 561), among other things, provides:
“The common council shall examine, settle and audit all accounts, demands and claims against the city. * * * No unliquidated claim or demand shall be received for audit unless made out in detail specifying, * * * if for damages for wrong or injury or negligence, when, where and how occasioned. * * * No action or proceeding to recover or enforce any claim,
The plaintiff claims to have presented a claim to the common council for audit on or about the 16th day of March, 1892, and another on or about the 1st day of August, 1892. The first notice of claim does not appear to have stated accurately the time and place at which the injury was received, and there may be some question as to whether it was ever presented to the common council for audit. We shall therefore confine our attention to the latter claim, the substance of which is as follows:
“On the evening of December 21, 1891, while driving along the Big Ridge road, my buggy was overturned, by coming in contact with a large pile of dirt in the middle of the street, at a point about one-third of a mile east of the Charlotte branch of the New York Central & Hudson River Railroad, as near as I can estimate the distance, and I was thrown to the ground. The buggy and harness were broken and damaged to the extent of $20.00. I was severely bruised and lamed, and was also rendered unconscious, by the fall, and remained in the street, in that condition, over an hour, and contracted a severe sickness from the exposure, and was confined to the house for several weeks, and put to considerable expense for medical attendance. I claim $200.00 for my personal injuries, which, with the damage to the buggy and harness, amounts to $220.00. The dirt had evidently been thrown up and left there by some one engaged in the construction of a sewer in the street. The night was very dark, and there were no guards or lights, of any kind, around the obstruction, to warn people of the danger. I am advised by counsel that my claim is a meritorious one, and I respectfully ask that your honorable body will allow it, and authorize its payment”
As we have seen, the statute requires that the claim presented for audit in case of injury shall state “when, where and how occasioned.” This statute should receive a reasonable construction. The time, place, and circumstances should be given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. ¡Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred. The claim presented by the plaintiff states that the injury was received on the evening of December 21, 1891; that the night was very dark; that there were no guards or lights, of any kind, around the obstruction; that he was rendered unconscious by the fall, and remained in the street, in that condition, over an hour. The claim further states that the dirt was in the middle of the street, at a point about one-
It is further contended that the claim presented by the plaintiff for audit is defective for the reason that it does not allege any negligence on the part of the defendant, or of any person for whose acts the defendant would be liable, but we find no such requirement in the statute. As we have seen, it requires the claimant to specify the time, place, and how occasioned. The claim presented for audit is not intended or required to be the complaint in the action or to contain the allegations that would be required to be incorporated in such complaint.
It is charged that this claim was not properly presented to the common council for audit, but the plaintiff’s attorney testified that it was presented to the common council on the 1st day of August. He then offered it in evidence. Its reception was objected to as immaterial. It was received by the court, and marked an exhibit in the case. No objection appears to have been made upon the ground that it had not been properly or sufficiently proved that the claim had been presented to the common council for audit. We must therefore assume that further evidence upon that subject was waived.
It appears that the plaintiff served two notices of intention to commence an action for the injury sustained. One was served on the 1st day of August, 1892, and the other on the 24th of September, 1892. The first was seven months and eleven days after the injury was received, and the second, nine months and three days thereafter. As we have seen, the statute requires this notice of intention to be served “within six months after such cause of action accrued.” The question is thus presented as to when the cause of action accrued. Did it accrue at the time the plaintiff received the injury, or did it accrue after the expiration of 40 days after the presentation to the common council of the plaintiff’s claim for audit? In determining this question, we should, so far as possible, harmonize the various provisions of the act. No time is specified within which the claim must be presented to the common council. No action, however, can be brought upon the claim until after the expiration of 40 days after such presentation; and all actions brought for such damages must be commenced “within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued,” and no action shall be maintained unless notice of intention shall have been filed within six months after such cause of action shall have accrued. We thus have two statutes of limitation, which may be properly designated as the “one-year limitation” and the “six-months limitation.” In the former the action must be commenced within one year “from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued." We thus have the two expressions connected with the disjunctive “or.” If the former expression is to be disregarded, and the latter followed,
LEWIS, J., concurs. DWIGHT, P. J., and BRADLEY, J., concur in the result