Cahill v. City of Rochester — 96 A.D. 557

Majority

p. 557

Bernard Cahill, Respondent, v. The City of Rochester, Appellant.

Headnote

Notice of injuries caused by the defective condition of city streets — the notice prescribed by the charter for cities of the second class abrogated the special provisions theretofore enacted for particular cities — how far such special provisions were affected thereby.

Section 461 of chapter 128 of the Laws of 1898, as amended by chapter 581 of the Laws of 1899, the White charter for cities of the second class, authorizing the maintenance of actions against cities of that class arising out of defects in sidewalks, when the defect complained of has existed for such a length of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence, establishes a uniform rule covering the subject of notice of defects in sidewalks in cities of the second class, and abrogates section 218 of the charter of the city of Rochester (Laws of 1880, chap. 14, as amd. by chap. 784 of the Laws of 1897), which provides that such an action cannot be maintained unless actual notice of the defect in question has been given to the city prior to the accident.

Semble, that, except in respect to notice of defective conditions, the White charter did not affect special legislation applicable to any city of the second class and regulating actions arising out of defective streets and sidewalks.

Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 19th day of January, 1904, upon the verdict of a jury for $225, and also ¿from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes. '

Plaintiff brought this action to recover damages alleged to have been sustained by falling upon a defective sidewalk in the city of Rochester which the defendant negligently allowed to remain out of repair. He recovered a small verdict. The only error assigned against his judgment and argued upon this appeal is that his action was not maintainable in the absence of actual notice to the city, of Rochester or its officials of the existence of the alleged defects. It is not claimed that any actual notice thereof was given before the accident, and it is conceded that originally defendant’s charter (Laws of 1880, chap. 14, § 218, as amd. by Laws of 1897, chap. 784) required such notice. The learned trial justice, however, held, and

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upon this appeal it is.'argued by respondent, that the White charter for cities of the second class (Laws of 1898, chap. 182, § 461, as amd. by Laws of 1899, chap. 581), dispensed with the necessity for this actual notice.and allowed such an action as this to be maintained when the defect complained of had existed for such a length of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence.

John M. Stull and William W. Webb, for the appellant.

Henry R. Glynn and Harvey F. Remington, for the respondent.

In the passage of the White charter the Legislature intended to effect a uniform system- for the government of second-class cities. By the provision of section 461 of said charter (as amd. supra) it intended to make a uniform regulation as to notice of defective conditions. It by the saving clause used the words “Nothing contained in this section shall be held to repeal or modify any existing requirement'or Statute of Limitations,” and it may be well said that by that was meant any other requirement than notice as to conditions or Statute of Limitations. Reading in this light it would seem that the old provision of the charter, which required actual notice, was abrogated by the. statute; and this would seem to be a reasonable construction of the statute. Having in mind the idea of uniformity in regulations with reference to municipalities, it is not unreasonable, I think, to say that' the Legislature intended to have uniformity of notice as to defects in sidewalks, but did not intend to do away with other features of the law which did not affect the notice either actual or constructive, as to defective conditions. This does not conflict with that provision of section 461 (supra) which requires that the provisions of said section shall be an additional requirement .to those already furnished. To say that either actual or constructive notice was in addition to the requirement of a statute which required that actual notice must be given before a liability can be incurred, would fender that provision of no effect Whereas, to say that wherever there was an additional requirement beyond the.notice which was still left in force, so far as the notice of defective conditions is concerned, the provisions of the White char

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ter are not inconsistent. To reiterate, if-there were only conditions in previous legislation as to defective conditions, that legislation was merged and repealed by the enactment of the White charter. If in addition to defective conditions there was some other special requisite of the charter, that was still left unrepealed, leaving the provisions of the White charter applicable to all municipalities, and in addition thereto any such municipalities as had special legislation which was not legislated upon, such special legislation was not affected.

All concurred.

Judgment and order affirmed, with costs.