McDonald v. City of Troy — 36 N.Y. St. Rep. 704

Majority

p. 704

James McDonald, Resp’t, v. The City of Troy, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 18, 1891.)

Headnote

1. Municipal corporations—Presentation op claim against.

The charter of the city of Troy, Laws 1872, chap. 129, tit. 6, § 10, requires the presentation of a claim against the city to its comptroller. The

p. 705

attorney for the plaintiff prepared such a claim, presented a copy to the comptroller, stated that he had the original with him and partly exhibited it, and he asked the comptroller whether that was all he wanted, to which the latter replied “ yes.” Held, a substantial compliance with the requirements of the charter.

3. Trial—Rulings.

Where a question is presented by counsel not material to the decision of the case, it is not error for the court to refuse to pass upon it.

Appeal from judgment in favor of plaintiff for $400 damages- and $206.90 costs, entered upon verdict, and from order denying motion to set aside the verdict and for a new trial.

H. A. King, for resp’t; W. J. Boche, for app’lt

Objection is taken that the plaintiff did not present his claim to the comptroller of the city pursuant to the requirements of the charter. Chap. 129, Laws 1872, title 6, § 10.

The attorney for the plaintiff prepared the original claim and presented a copy of it to the comptroller, at the same time stating that he had the original with him and partly exhibiting it to the comptroller and asking him if that was all he wanted, to which the comptroller replied, “Yes.” This was a substantial compliance with the terms of the charter. The original was not withheld ; the comptroller clearly could have had it if he had needed it. As was said in Magee v. City of Troy, 48 Hun, 383 ; 16 N. Y. State Rep., 336; aff’d, 119 N. Y., 640 ; 29 N. Y. State Rep., 992: “ The comptroller thus obtained the notice the law contemplates.”

The plaintiff was injured by being thrown from his buggy. While riding at night along North Second street his horse was suddenly stopped by coming in contact with a pile of lumber lying upon the side of the street, and the plaintiff was thrown out. This lumber had been placed there for building purposes by the owner of an abutting lot The deposit of lumber was temporary and for a reasonable purpose, and was, therefore, permissible. Callanan v. Gilman, 107 N. Y., 360 ; 12 N. Y. State Rep., 21. But in such case reasonable care should be taken to protect the traveler using the street from receiving any injury from it The pile was not guarded, and was not lighted except by the ordinary street lamps. Whether the absence of any guard or any other light was negligence was a question for the jury.

The question of the plaintiff’s contributory negligence was also for the jury.

The pile of lumber had been lying upon the street sufficiently long to justify the jury in finding that the city had notice. Magee v. City of Troy, supra.

The counsel for the defendant requested the court to charge the jury that if they found for the defendant upon the ground that the claim was not presented to the comptroller, the plaintiff would not be barred by the provision of the charter or any statute of limitation from maintaining a new action. This was declined, and we think properly, upon the ground that the question presented was not material to the proper decision of this case, and

p. 706

the court was not obliged to pass upon questions supposed to arise in a hypothetical case.

Judgment and order affirmed, with costs.

Learned, P. J., and Math am, J., concur.