Moren v. City of New York

Section 261 of the same act provides in part as follows:

“No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the city of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”

The complaint in this action contains the allegation required by section 261, as aforesaid, but such allegation is put in issue by the answer of the defendant. ' This is a rather interesting case, with not much authority in point to guide us in the solution of the question presented on the appeal. Much of the discussion in the'briefs of the respective counsel arises upon the question whether section 261 of the Greater New York Charter, as aforesaid, applies to an action to recover damages for a personal injury. The plaintiff contends that that section does not apply to such an action, and rests her contention largely upon an expression of opinion of this court in Quinn v. City of New York, 68 App. Div. 175 , 74 N. Y. Supp. 89 . The real question involved in the last-cited authority was whether chapter 572 of the Laws of 1886 was superseded by section 261 of the Greater New York Charter. It was held that the act of 1886 was not superseded by section 261 as aforesaid, and the expression of opinion as to the application of section 261 to tort actions was unnecessary to the decision then made. I happened to be the counsel for the city in the Quinn Case, and made no contention that section 261 of the Greater New York Charter did. not apply to a tort action, as will appear from the record on appeal. In Pulitzer v. City of New York, 48 App. Div. 6 , 62 N. Y. Supp. 587 , it was held that section 261, as aforesaid, did apply to an action in tort, and in Bernreither v. City of New York, 123 App. Div. 291 , 107 N. Y. Supp. 1006 , it was held, likewise, that both the act of 1886, as aforesaid, and section 261 of the charter applied to actions against the city of New York to recover damages for personal injuries.

[2] When this action was begun, the 30 days given to the comptroller by section 261 of the charter, as aforesaid, for the purpose of adjustment of this claim had expired. He had not adjusted the claim at the time the summons was served. Did the postponement of the oral examination of the plaintiff necessarily extend the time in which the comptroller had the right to examine into the plaintiff’s claim before she was entitled to bring an action thereon? It would seem that the necessary meaning of section 261 of the charter was that the comptroller should have the full 30 days in which to settle or adjust a claim before an action could be brought thereon, but this section makes no reference to an oral examination by the comptroller of the claimant. The power to require such an examination is to be found in section 149 of the charter, as aforesaid. That section, however, contains no provision that a claimant against the city may not bring an action on his claim until after he has submitted himself to the oral examination therein provided for. If this action has been brought prematurely, then the plaintiff is out of court entirely, because the short period of limitation provided by the act of 1886 has run completely, and any new

action brought by her will be met by that statute of limitations. This case, it seems to me, is very much like that of Jones v. City of Albany, 151 N. Y. 223 , 45 N. E. 557 . There the inquiry was whether section 45 oi the then charter of the city of Albany suspended the right of the plaintiff to bring an action against the said city to recover damages for a personal injury until the lapse of a period of three months after the presentation of a claim therefor to the common council of that city. It was there stated as follows:

“It is the general rule that an intention to change the rule of the common law will not be presumed from doubtful statutory provisions; the presumption is that no such change is intended, unless the statute is explicit and clear in that direction.”

It will be noticed that in this case at bar the time set by the comptroller for the examination of the plaintiff concerning the claim which she had presented against the city was fixed for the 29th day after the presentation of the claim, thus leaving, to the comptroller but one day to settle or adjust the claim, if he so determined, before the plaintiff could begin her action. As it was, the full 30 days had gone by before the action was begun. If the taking of the oral examination under the circumstances above outlined was a condition precedent to the plaintiff’s right to sue, then her action was brought prematurely. But it is well-settled law that conditions are not to be favored, and should not be implied, unless the intent to create them is plain. Arnold v. Village of North Tarrytown, 137 App. Div. 68 , 122 N. Y. Supp. 92 ; Id., 203 N. Y. 536 , 96 N. E. 1109 ; Jones v. City of Albany, supra. The question here involved is not free from doubt, but I think we should not be justified in holding, under the circumstances of this case, that the plaintiff’s action was brought prematurely.

The plaintiff’s exceptions should be sustained, and a new trial granted, costs to abide the event. All concur.