Mertz v. City of Brooklyn — 33 N.Y. St. Rep. 577

Majority

p. 577

Max Mertz, App’lt, v. The City of Brooklyn, Resp’t.

(City Court of Brooklyn,

General Term,

Filed October 27, 1890.)

Headnote

1. Municipal Corporations — Brooklyn — Negligence — Laws 1886, chap. 572.

Chapter 572, Laws 1886, requiring notice of intention to commence action against a municipal corporation for personal injuries to he filed with the corporation counsel, etc., applies to the city of Brooklyn.

'2. Same—Judicial knowledge as to population.

Courts may take judicial knowledge of the population in political divisions of the state.

'3. Same—Act not repealed by chapter 31, laws 1890.

Chapter 572, Laws 1886, was not repealed by chapter 31, Laws 1890. The two acts do not conflict.

4. Same—Constitutional law.

Chapter 572, Laws 1886, is not unconstitutional.

Appeal from judgment in favor of defendant, entered, upon ■order sustaining demurrer to the complaint

The plaintiff was injured in Stagg street, October 1, 1889, by defendant’s negligently permitting the street to be out of repair.

December 21, 1889, pursuant to the provisions of the charter ■of Brooklyn, chap. 583, Laws of 1888, title 22, § 30, revising chap. 563 of the Laws of 1886, plaintiff gave notice of his claim against the defendant to the comptroller of the city of Brooklyn.

The ground of the demurrer is, that the complaint being for personal injuries does not contain an allegation that notice of the intention to commence this action, and of thé time and place at which plaintiff’s injuries were received, was filed with the counsel to the corporation within six months after plaintiff’s cause of action accrued.

This action was commenced January 24,1890, within six months after the happening of the accident.

Daily & Bell, for app’lt; A. F. Jenks, for resp’t

It is claimed by the counsel for the appellant that chap. 572 of the Laws of 1886 does not apply to actions for personal injuries against the city of Brooklyn, because such statute reads " No action against the mayor, aldermen and commonalty

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of any city in this state shall be maintained,” etc., and for the reason that the words “ mayor, aldermen and commonalty ” do not appear in the corporate title of this city, which is simply “ The City of Brooklyn.”

The statute is carelessly drawn, and the point raised is not free from doubt, and should be determined by the court of appeals. We are inclined to hold that it does apply to actions against this-city. The act is entitled “ An act in relation to certain actions against municipal corporations,” and we think that the words in * question are used as descriptive of all municipal corporations in the state, and that the act was not intended to affect only the city of New York. The words: “ Counsel to the corporation or other proper law officer thereof,” near the end of section 1, are suggestive that the act applies to other cities, for the official title of the law officer of New York city is “counsel to the corporation.”' Section 36, chap. 410, Laws of 1882.

Courts will take judicial knowledge of the population of political divisions of the state, Farley v. McConnell, 7 Lansing, 428. and the act therefore requires, as a condition precedent, that, in order to maintain an action for personal injuries against the city of Brooklyn, the complaint should contain an allegation that notice of intention to commence the same, and of the time and place at which the injuries were received, has been filed with the corporation counsel within six months after such cause of action shall have accrued, and the legislature has the power to require such a condition. Reining v. Buffalo, 102 N. Y., 308 ; 2 N. Y. State Rep., 10.

The act under consideration also provides a statute of limitations for one year. That the legislature had power, to so provide-is beyond question. It has never been decided that the exemption clause of the charter was unconstitutional. The contrary was held in the case of Gray v. Brooklyn, 10 Abb., N. S., 186, but in the light of later decisions of the court of appeals it may be said that the point was not necessary to the decision of the case. The statute of limitations in actions against a sheriff is one year, § 385, Code of Civil Procedure, and we know of no reason why the-legislature cannot so provide as to actions against municipal corporations. The time is reasonable. Wheeler v. Jackson, 41 Hun, 410 ; 1 N. Y. State Rep., 489; affirmed in Court of Appeals, 105 N. Y., 681 ; 8 N. Y. State Rep., 911.

It is claimed that the act has been repealed by implication. Chapter 563 of the Laws of 1886 need not be considered, for the same did not apply to actions for torts. Harrigan v. Brooklyn, 119 N. Y., 156 ; 28 N. Y. State Rep., 957. The revised charter did not-repeal any general laws of the state, and chapter 31, Laws of 1890, cannot be construed as a repeal of the act before us, because the two acts do not conflict. Some of the cities of this state prior to 1886 had provisions in their charters which required a.demand for payment of the financial officer of such cities before an action could be maintained for a tort. The charters of the cities of Troy and Buffalo so provided. Harrigan v. Brooklyn, 119 N. Y., 156 , 158; 28 N. Y. State Rep., 957. And yet it is clear that chapter

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.572 of the Laws of 1886 did not repeal, so far as those cities are concerned, the acts requiring presentation of a demand on the financial officer. In other words, if we hold that the act of 1890 repealed by implication the law of 1886, then, in actions against the city of Brooklj n for personal injuries, a demand on the comptroller would be sufficient, without notice to the corporation counsel, while in actions of the same class against the cities of Troy and Buffalo, notices to the financial and law officers would be required to be alleged in the complaint. It was within the power of the legislature to require notice to the corporation counsel and :also a demand on the comptroller. Whether notice to two officers would seem to be necessary, or whether notice to one officer ought "to be sufficient to protect the city against suits, is not before us to decide. If the legislature had the power so to require notice of actions to two officers, of which there can be no doubt, then the remedy of the aggrieved parties is not in the courts, but in the ■body which made the law.

The Law of 1886 has been passed upon by the general term in two departments, and has been upheld. Dawson v. Troy, 49 Hun, 322 ; 17 N. Y. State Rep., 559, and Babcock v. Mayor, etc., 56 Hun, 196 ; 31 N. Y. State Rep., 110. After a careful consideration of the briefs of counsel, we think that the decision at sjiecial term was right, but, in order that the points involved may be finally settled, a certificate will be made under § 190 of the Code.

Judgment affirmed, with costs.

Van Wyck, J., concurs.