Burford v. Mayor of New York

On the argument of this cause, counsel declared that the only question for the consideration of the court on' this appeal was the sufficiency of the proof made by the plaintiff of the service of the notice of claim required to be filed with the corporation counsel by chapter 572 of the Laws of 1886. . It appeared in evidence that a notice sufficient in form was served upon the comptroller of the city of Hew York, but*we have held that such a notice, even if traced into the hands of the corporation counsel, is not a sufficient compliance with the requirement of the law. (Missano v. The Mayor, 17 App. Div. 536 .) It was also shown by the plaintiff that an attempt at service of the necessary notice upon the counsel to the corporation was made by mailing it. Service of such a no ticé by mail is insufficient. The purpose of the statute is that direct written notice shall be given, and that it shall be filed with the corporation counsel. That requirement imposes upon the claimant the duty of doing everything necessary to put the corporation counsel in physical possession of the notice so that it may be said to be off file with him — mailing is not the equivalent of filing required by the statute. Delivery by or on behalf of tlie claimant at the office in which the filing is to be made will alone satisfy the statute. As was said in Gates v. The State ( 128 N. Y. 221 ), in commenting upon another statute respecting the filing of claims, “if we should hold that the mailing by a claimant of his claim directed to the canal appraisers was equivalent to

But there was some slight evidence on the trial that the corporation counsel had received a notice, a witness testifying that he saw in the corporation counsel’s office, in the hands of an assistant, a notice of claim with the name of the corporation counsel written upon it, and the contention is, therefore, made that the notice was, to all intents and purposes, filed and the law complied with; and that, inasmuch as the object of the statute was accomplished, the means by which that was done became immaterial. The plaintiff was examined by the corporation counsel, and it was upon the occasion of that examination that the notice addressed to the corporation counsel was seen in ■the hands of his assistant conducting the examination:

That slight evidence was not enough to show a delivery of the notice at the corporation counsel’s office in the manner required by law. It is of the utmost importance that this statute should be strictly complied with. How, when or under what circumstances the assistant corporation counsel came into possession of the copy of the notice which was seen in his hands on the examination we do not know. Ho presumption that it was filed in accordance with the law can he'drawn where the fact is obvious that it was not delivered as required by law, and in that respect the case differs from McMahon v. The Mayor ( 1 App. Div. 321 ), where, under the exceptional facts appearing in that case, we held that the notice was sufficiently ' filed because there was proof of. its actual delivery to an assistant to the corporation counsel, who was conducting the examination of a plaintiff as to the claim set forth in the notice at the time the service was made. But here we cannot indulge in the inference of proper filing merely from the fact that in some way a notice came into the hands of an assistant to the corporation .counsel, and he had it on a particular occasion. The point may seem to be technical, but it is of prime importance to the city.

The judgment dismissing the complaint must be affirmed, with ■ costs. ■ .

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.