Johnson v. City of Troy — 24 A.D. 602

Majority

p. 602

James Johnson, Appellant, v. The City of Troy, Respondent.

Headnote

A claim against the city of Troy for injury to property or person—it must state the street eren if the house be unnumbered.

A party having a claim for injury to person or property against the city of Troy, whose charter (Laws of 1892, chap. 670, tit. 10, § 19) provides that no action upon such a claim shall be maintained unless the claimant shall have previously presented to the comptroller a claim “stating, among other things, the residence by street and number of the claimant,” is not excused from stating

p. 603

the street upon which his residence is located, by reason of the fact that, the house being unnumbered, it is impossible to state the street number.

In such a case a statement which gives the claimant’s residence as the city of Troy, merely, is fatally defective.

Appeal by the plaintiff, James Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of .the cleric of the county of Rensselaer on the 10th day of June, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Rensselaer Trial Term, and also from an order bearing date the 19th day of May, 1897 and entered in said clerk’s office denying the plaintiff’s motion for a new trial.

The action was brought to recover damages for personal injuries resulting to the plaintiff, who, while driving in the public streets of the defendant city, was, because of the alleged defective condition of said streets, thrown to the bottom of his wagon and injured.

G. B. Wellington, for the appellant.

William J. Roche, for the respondent.

By section 19 of title 10, chapter 670 of the Laws of 1892, being the charter of the city of Troy, it is provided that no civil action shall be maintained against the city of Troy for damages for injury to person or property unless the plaintiff shall have previously presented to the comptroller a statement “stating, among other things, the residence by street and number of the claimant.”

The statement presented to the comptroller in this case merely gave the residence of the claimant as being in the city of Troy, stating neither the street or number of the street where the claimant resided.

It appears that the plaintiff resided upon a lot which runs from Hill street to Fifth street in the city of Troy; there was a dwelling house upon the Hill street end of such lot, and another upon the Fifth street end, the latter building being built diagonally to the street, one corner of such building reaching to or very nearly to the street line on Fifth street. Entrance to this latter building, where the plaintiff resided, can be had from Fifth street, or from

p. 604

Hill street, passing over nearly the length of such lot until the building is reached. The building on the Hill street end of the lot appeal’s to have been numbered, that on the Fifth street end of the lot appears not to have been numbered ; and, it not being numbered, it is contended that the plaintiff was relieved from complying with that portion of the statute which I have quoted.

It may be assumed that no law requires the performance of an impossibility, and that where no number exists none can be stated. But the fact that it is impossible to comply with one requirement of a statute does not relieve one from complying with another portion that can be. Here, while we assume that it was a physical impossibility to state the street number, because there was no number, yet the street itself could have been stated.

That which the Legislature has declared by statute to be a prerequisite to the commencement of an action, the court cannot say is unimportant and may be disregarded. It has been repeatedly held that one of the purposes of statutes of this kind is to apprise the municipality at an early date of the existence of a claim in order that it may have an opportunity to investigate it. It is frequently just as important to investigate the claimant as it is the claim; notice of who he is, and where he can be found, may be of just as much importance as notice of where, how and when the injury occurred.

The statute in this case should have been complied with, at least to the extent to which it was possible to meet its requirements ; it has not been.

The question of waiver of the sufficiency of the statement by the municipal officers, as well as some other questions that have been presented to us in this case, have been discussed in the case of Borst v. The Town of Sharon (ante, p. 599), and it is needless to repeat that discussion here.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.