McMahon v. Mayor — 1 A.D. 321

Majority

p. 321

Martin McMahon, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

Headnote

Municipal corporations — notice of an intention to sue for personal injuries — with, whom it may be filed—Laws 1886, chap. 573.

In an action brought to recover damages resulting from personal injuries alleged to have been sustained by the negligence of the mayor, aldermen and commonalty of the city of New York, the only question presented on an appeal from a judgment in favor of the plaintiff was, as to whether the notice of an intention to commence the action and of the time and place at which the injures were received, had been filed with the counsel to the corporation or other proper law officer, within six months after the cause of action had

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accrued. Upon this point it appeared that the person to whom the notice was delivered was acting at the time as an assistant to one of the assistants of the corporation counsel; that he was an attorney, was in the corporation counsel’s office at the time of the service, and was actually engaged in the examination of the plaintiff with regard to the very claim which was the subject of the action.

Seld, that, under the peculiar circumstances of the case, there was a sufficient filing.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Yew York, from a judgment of the Court .of Common Pleas for the city and county of Yew York in favor of the plaintiff, entered in the office of the clerk of said court on the 22d day of April, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

The action was brought to recover the damages resulting from an injury caused to plaintiff by falling into a hole permitted to exist through- the alleged negligence of the defendant in a public street in the city of Yew York.

Theodore Gonnoly and Terence Farley, for the appellant.

Arthur II Smith, Abram J. Rose and Alfred G. Petté, for the respondent.

The only question presented upon this appeal is whether the notice required by the statute was duly filed with the corporation counsel. We think, under the peculiar circumstances of this case, that there was a sufficient filing. The gentleman to whom the notice was delivered was acting at the time as assistant to one of the assistants of the corporation counsel. He was intrusted with the important duty of examining the plaintiff with regard to the accident. He was himself an attorney at law. He was in the corporation counsel’s office at the time of the service, actually engaged in the examination of the plaintiff with regard to the very claim which is the subject of this action. It was entirely natural that the notice should be delivered to him at such a time, in such á place and under such circumstances. The question whether the notice was then and

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there actually delivered to him was fairly submitted to the jury, and we cannot disturb their verdict.

Upon the facts thus found we think the notice was filed within the letter and the spirit of the law.

The judgment should be affirmed, with costs.

Present—Van Brunt, P. J., Barrett, Rumsey, Williams and Ingraham, JJ.

Judgment affirmed, with costs.