Learned v. Mayor of New York

locus in quo without delay, obtain witnesses, and make diagrams or photographs of the place, to be used in case they determined that the 'claim ought to be resisted. The statute is mandatory that the notice shall state “the time and place at which the injuries were received,” and that no action shall be maintained against the municipality unless such notice shall have been given; and such notice is in the nature of a condition precedent to the right of recovery. Reining v. City of Buffalo, 102 N. Y. 308 , 6 N. E. 792 ; Curry v. City of Buffalo, 135 N. Y. 366 , 32 N. E. 80 . Where the language of a statute is definite, and has a precise meaning, it must be presumed to declare the intention of the legislature; and it is not allowable to go elsewhere in search of conjecture to restrict or extend its meaning. Johnson v. Railroad Co., 49 N. Y. 455 ; People v. Supervisors of Greene Co., 13 Abb. N. C. 421 ; Cook v. Kelley, 12 Abb. Prac. 35 . The complaint in such an action must therefore allege the service of the notice; and, if denied, the plaintiff must prove it to establish a right of action. Foley v. City of New York, 1 App. Div. 586 , 37 N. Y. Supp. 465 ; Curry v. City of Buffalo, supra; Reining v. City of Buffalo, supra; Baylies, Code Pl. 38; Meyer v. Mayor, etc., 14 Daly, 395 , which decides that the act in question does not apply where the action is commenced within six months by the service of a summons and complaint, is in direct conflict with Curry v. City of Buffalo, supra, and the principles of the other cases cited, and must therefore be considered as overruled by them. It is also inapplicable because the complaint herein was not served within 6, but about 10 months after the accident. The complaint does.not aid the notice, although it has the merit of stating correctly the place where the accident occurred. It alleges “that, within six months after the -cause of action sued on herein accrued, notice of the plaintiff’s intention to commence this action, and of the time and place at which her injuries were received, was filed with the counsel to the defendant corporation.” A good complaint does not cure a defective notice, when the latter is the foundation upon which the right to maintain the action depends. Neither does the answer help the plaintiff. The defendant “admits that on or about the 21st day of June, 1894, there was filed in the office of the counsel to the corporation a paper purporting to be a notice of intention to commence this action”,; and the fourth paragraph “denies that it [the defendant] has any knowledge or information sufficient to form a belief as to any of the allegations in said complaint contained not hereinbefore specifically admitted or denied.” This form of denial is permissible, and serves to put in issue all the allegations in the complaint not specifically admitted or denied. Griffin v. Railroad Co., 101 N. Y., at page 354, 4 N. E., at page 742; Crane v. Crane, 43 Hun, 309 ; De Graaf v. Wyckoff, 13 Daly, 366 . The defendant could not truthfully deny, rand therefore admitted, that the plaintiff had served a paper which purported to be a notice of intention to ■commence the action. The admission goes no further, for the defendant, by its denial, put in issue the form and sufficiency of'the paper as alleged in the complaint, and required the plaintiff to prove that the notice served was such as the statute required; and in this,

for the reasons stated, she materially failed. It is not a case where the plaintiff was misled by the form of the answer from furnishing the proof necessary to the maintenance of her action, for the notice served was produced and offered in evidence, and it is the unamendable defect therein which prevents her recovery. The cases relied on by the plaintiff do not touch the point involved here. In Grogan v. City of Worcester, 140 Mass. 227 , 4 N. E. 230 , and Canterbury v. City of Boston, 141 Mass. 215 , 4 N. E. 808 , the notice to the municipal authorities correctly stated the time and place of the injury, and was objected to on the ground that the facts respecting the nature and cause of the injury were not stated with sufficient particularity, but it was held to be sufficiently explicit under the Massachusetts statute. In Magee v. City of Troy, 48 Hun, 383 , 1 N. Y. Supp. 24 , the notice was correct in form, but a copy was served instead of the original, and the court (at page 386, 48 Hun, and page 25, 1 N. Y. Supp.) said:

“The original claim, signed and verified by the plaintiff, was shown the comptroller, and a copy of it delivered to and left with him. We think this was a sufficient presentation of the claim, in the absence of any objection by the comptroller or demand of the original. The comptroller thus obtained the notice the law contemplates.”

In this instance the defect was not one apparent on the face of the paper, so as to call for any affirmative act on the part of the municipality, or to charge it with waiving the defect by retaining the paper. It related not to matter of form, but of substance, and was of so serious a character as to destroy the statutory purpose of the notice. There was clearly no waiver, because that implies knowledge, and knowledge cannot be imputed to the defendant. The non-suit was properly directed, and the motion for a new trial must be denied.