Tolchinsky v. City of New York

Headnote

Tolchinsky v. City of New York, 164 App. Div. 636 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial

department, entered December 17, 1914, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate, an infant three years of age, alleged to have been occasioned through the negligence of defendant. The cause of death was injuries received by reason of being run over by a wagon belonging to the street cleaning department. The complaint was dismissed on the grounds that it has not been shown that section 261 and section 149 of the charter of the city of New York have been complied with and the plaintiff has fulfilled the conditions precedent prescribed thereby, referring particularly to the failure of the plaintiff to appear before the comptroller for examination under the notice issued by the comptroller pursuant to section 149, and that the plaintiff has failed to show that the decedent or the mother, who had the custody of the decedent, was free from contributory negligence. The Appellate Division held that the question of the contributory negligence of the child’s mother was one of fact for the jury; and that sections 261 and 149 of the charter should be read together and that, as the plaintiff had not submitted to an examination, and thus given the comptroller an opportunity to examine the merits of the claim, he could not maintain the action.