Olmstead v. Town of Pound Ridge — 53 N.Y. St. Rep. 849

Majority

p. 849

Charles O. Olmstead, App’lt, v. The Town of Pound Ridge, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Towns—Laws 1890, chaptbb 568, § 16—Constitutional law.

Section 16 of chapter 568, Laws 1890, providing that no action can be maintained against a town for injuries sustained through any defect in its roads or bridges unless a verified statement of the cause of action shall have been presented to the supervisor within six months, nor until fifteen days after service of such statement, simply imposed a condition which affected the remedy, and is not unconstitutional.

8. Same—Pleading.

In an action against a .town the complaint must show the performance of the conditions precedent.

p. 850

Appeal from judgment in favor of defendant, entered on a dismissal of a complaint on the trial on the ground that it did not state facts sufficient to constitute a cause of action.

Action to recover damages for injury to plaintiff’s horse occasioned by its falling through a bridge which defendant was bound to keep in repair. The complaint did not allege that a verified statement of the cause of action had been presented to the supervisor of the town within six months after it accrued and that fifteen days had elapsed between the service of such statement and the commencement of the action.

Charles Haines, for app’lt; Smith Lent, for resp’t.

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 six months after the cause of action accrued, nor that fifteen days had elapsed after the claim was so presented before the action was commenced, according to the requirement of § 16, chap. 568, Laws of 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 ; Matter of Palmer, 40 id., 561.

It was necessary to aver the performance of the conditions precedent in the complaint This defect in the complaint can be raised at any stage of the action. Reining v. City of Buffalo, 102 N. Y., 308 ; 2 St. Rep., 10 .

The judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.