Hyperlawhypertext legal database Olmstead v. Town of Pound Ridge 24 N.Y.S. 615

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Olmstead v. Town of Pound Ridge

24 N.Y.S. 615 Court N.Y. Gen. Term Decision date 1893-07-28 English

Delivered by [BARNARD, P. J.

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p. 615
OLMSTEAD v. TOWN OF POUND RIDGE.
(Supreme Court, General Term, Second Department.
July 28, 1893.)

Headnote

L Defective Bridge—Notice of Injury—Averment in Complaint.
A complaint in an action against a town, for injuries caused by defendant’s negligence in failing to keep a bridge in repair, must aver that the claim was served on the supervisors of the town within 6 months after the cause of action accrued, and that 15 days elapsed after the claim was so presented before the action was commenced, as required by Laws 1890, c. 508, § 10.
2. Same—Time of Raising Objection.
Objection to the complaint, for failure to show that such notice was given, may be raised at any stage of the action.
Appeal from circuit court, Westchester county.
Action by Charles O. Olmstead against the town of Pound Ridge to recover damages for injuries to plaintiff’s horse, caused
p. 616
by defendant’s negligence in failing to keep a bridge in repair. Prom a judgment dismissing the complaint, plaintiff. appeals.
Affirmed.
On the argument, plaintiff contended that the statute referred to in the opinion is in conflict with article 8, § 3, of the constitution of New York, which provides that all corporations shall have the right to sue, “and shall be subject to be sued, in fill courts, in like cases as natural persons,” and with section 1, art. 14, of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. He also contended that the limitation of such statute is unreasonably short, and therefore void.
Argued before BARNARD, P. J., and PRATT, J.
Charles Haines, for appellant.
Smith Lent, for respondent.

The complaint is framed to recover damages for a neglect to keep a 'highway in the town of Pound Ridge in proper repair by the commissioners of highways of the town. The accident is alleged to have occurred by the neglect of the commissioners, and without any neglect upon plaintiff’s part, on the 25th of March, 1892. The complaint contains no averment that the claim was served upon the supervisor of the town within 6 months after the cause of action accrued, nor that 15 days had elapsed after the claim was so presented before the action was commenced, according to the requirement of section 16, c. 568, Laws 1890. The complaint was dismissed for this defect at the opening of the trial. The law in question simply imposed a condition which affected the remedy, and is subject to no objection. Morse v. Goold, 11 N. Y. 281 ; In re Palmer, 40 N. Y. 561 . It was necessary to aver the performance of the conditions precedent in the complaint. This defect in the complaint can he raised at any stage of the action. Reining v. City of Buffalo, 102 N. Y. 308 , 6 N. E. Rep. 792 . The judgment should be affirmed, with costs.

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