Majority
p. 230Fannie J. Duff, Pl’ff, v. The Mayor, etc., of New York, Def’t. (New York Superior Court, General Term,, Filed October 10, 1891.)
Headnote
Municipal corporations—Action For personal injuries—Notice.Chapter 572, Laws 1886, does not require a notice of intention to commence a suit for personal injuries against the city, other than such as is conveyed by service of summons and complaint, to be filed in cases where the action is brought within six months of the time when the cause of action accrued.
Exceptions ordered to be heard in the first instance at general term, which are based upon the motion to dismiss the complaint upon the ground that the plaintiff had failed to file with the counsel to the corporation a notice of her intention to commence the action within six months after the accident, in compliance with the requirements of chap. 572 of the Laws of 1886.
Douglas A. Levien, Jr., for pl’ff; William H. Clarke, for def’t.
We are disposed to apply the reasoning in Meyer v. The Mayor et al., 14 Daly, 395 ; 12 N. Y. State Rep., 674, and Denair v. The City of Brooklyn, 5 N. Y. Supp., 835 ; 25 N. Y. State Rep., 1014, to the facts of this case.
The intent of the legislature must be sought, and governs. The act of 1886 and surrounding circumstances cause the opinion that
p. 231
it was not the legislative intent that a notice of intention, other than such as is conveyed by the service of a summons and complaint, should be required to be filed in cases where the action is brought within six months of the time when the cause of action accrued. Reining et al. v. The City of Buffalo, 102 N. Y., 308 ; 2 N. Y. State Rep., 10, and Babcock v. The Mayor et al., 56 Hun, 196 ; 31 N. Y. State Rep., 110, are distinguishable from the present case. In the Babcock case, the action was commenced more than six months after the accident happened.
Plaintiff’s exceptions should be sustained, the order of dismissal vacated, and a new trial ordered, with costs to abide the event.
Freedman and Gildersleeve, JJ., concur.