Walsh v. City of Buffalo — 72 N.Y. St. Rep. 99

Majority

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Margaret Walsh, App’lt, v. City of Buffalo, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed December 28, 1895.)

Headnote

1. Statute—Repeal.

In determining whether the legislative intent is to supersede or repeal by implication certain provisions of a statute by a later one, the object to be attained by the statute is to be taken into consideration, to ascertain whether the purpose of the earlier is comprehended within the provisions of the later statute on the same subject.

2. Municipal corporations—Notice of intention to sue.

Chapter 572 of 1886 was not repealed by chapter 105 of 1891, and notice of intention to sue the city of Buffalo, served on the corporation counsel, must state the time and place at which the injuries were received.

8. Same—Sufficient notice.

Where such notice is accompanied with a copy of such statement filed with the city clerk, the two papers are to be read together to make a complete notice.

Appeal from a judgment of nonsuit.

Perkins & Welch, for app’lt; Frank 0. Laughlin, for resp’t.

—The purpose of the action was to recover damages for personal injury of the plaintiff alleged to have been occasioned bv the negligence of the defendant. Her injury was caused by a fall while walking on a sidewalk of a street in the city of Buffalo, on or about February 4,1894. The facts that the injury sustained by her was attributable to the negligence of the defendant, and that she was free from contributory negligence, were conceded at the trial. The only question presented there was whether the plaintiff had filed with the corporation counsel the requisite preliminary notice of intention to commence the action. The city charter provides that:

“ The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk. * * * and if for damages for wrong or injury, when, 'where and how occasioned, and shall be accompanied by an affidavit that the claim and the items of specification thereof are in all respects just and correct, and that ho payments have been made and that no set-off exists, except those stated.” Laws 1891, c. 105, § 15.

The plaintiff’s claim upon which this action is founded, made in the form required by the statute, and duly verified in her affidavit, was served upon the city clerk of the defendant on April 21, 1894.

The city charter also provides that s

“No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim has been filed with the city clerk for presentation to the common council for audit in the manner and form aforesaid, and no action shall be maintained against the city for personal injury, unless notice of intention to commence such action shall have been' filed with the corporation counsel within six months after such°cause of action shall have accrued. * ® *

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All actions brought against the city to recover damages for personal injuries caused by negligence must be commenced within one year from the time of receiving the injuries.” Laws 1891, c. 105, § 16.

This chapter 105 of Laws of 1891 is entitled “ An act to revise the charter of the city of Buffalo.” It contains a provision that “ all acts and parts of acts inconsistent with this act are hereby repealed.” Id. §507.

Prior to this act, and in 1886, a general act was passed, entitled “ An act in relation to certain actions against municipal .corporations.” It provided that:

No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand- inhabitants * * * or over for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said .corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were, received shall have been filed with the counsel of the corporation, or other proper law officer, thereof, within six months after such cause of action shall have accrued.” Laws 1886, c. 572.

This act was applicable to the city of Buffalo. Curry v. City of Buffalo, 135 N. Y. 366 ; 48 St. Rep. 482 . At the time of its passage, there was no existing statute requiring the service of a preliminary notice of intention to sue the city of Buffalo, but there were provisions substantially the same in other respects as those of sections 15, 16, c. 105, Laws 1891, in the charter as amended by section 8, c. 479, Laws 1886, which, with the provisions of the general act before mentioned, constituted the requirement to furnish statement of claim to the common council, and notice of intent to sue tó the corporation counsel. Those were the only provisions on the subject until the passage of the revised charter of 1891, which provided for the filing of both the statement of claim and notice of intention to sue, as conditions precedent to the right to maintain an action for damages arising from alleged negligence of the city. The provisions there for. notice of intention to commence action does not direct that the notice contain a reference to the time and place at which the injuries were received, as does the provisions of the general act of 1886.

The plaintiff, in filing the statement with the city clerk and the .notice of intention with the corporation counsel, evidently proceeded upon the direction in the revised charter. The notice was as follows °

“To the Corporation Counsel, Buffalo, N. Y—Sir: You will please take notice that the undersigned, Margaret Walsh, intends to commence an action against the city of Buffalo to recover damages for personal injuries sustained by her by reason of the facts set forth in a statement of claim filed by the said Mar

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garet Walsh with the city clerk of the city of Buffalo on the 21st day of April, 1894.

“Dated Buffalo, N. Y., May 14, 1894.

“Yours, &c., Margaret Walsh, by Perkins and Welch, Her A ttys.”

Admission of the corporation counsel of service on May 14,1894, was indorsed on the notice.

In determining whether the legislative intent is to supersede or repeal by implication certain provisions of a statute by a later one, the object to be attained by a statute is to be taken into consideration’, to ascertain whether the purpose of the ealier is comprehended within the provisions of the later statute on the same subject. The design of that referred "to was to give information to tlie city of the nature and causé of the injury, and the time and place when and where and how it was occasioned, as well as notice of intention to sue; and one of the purposes of the act of 1886 evidently was to give the information within six months, to enable the city authorities, at a time as early as that, to proceed to investigate • the matter of the claim. The requisite preliminary statement which a claimant is required by the revised charter to tile with the city clerk must set forth all the facts in respect to an injury required to appear in the notice of intention prescribed by the act of 1886. If the revised city charter had required the claimant to file the statement with the city clerk within six months after the alleged injury, I should have been inclined to view that it was intended to prescribe the only rule on the subject in that city; and therefore, that by the provisions of the revised charter, those of chapter 572 of the Daws of 1886 were, by-implication, repealed so far as applicable to the city of Buffalo. But the difficulty is that the limitation of time within which information is given may be important to the city, and the claimant is not required to file the preliminary statement with the city clerk until more than ten months after the occurrence of the injury complained of. While the provision of the" city charter is to the effect merely that a notice of intention to commence the action be filed with the corporation counsel within six months, that of the act of 1886 also requires that the notice give the further information before mentioned. The two statutes, before, seem to be in pari materia and must tie taken together in their application to that city. The notice called for by the act of 1886 embraces all" that is requisite to comply with the provision of the later one on the subject, so that only one notice to the corporation counsel is necessary.

It, however, is urged on the part of the plaintiff that she did comply" with the statute on the subject of notice, by serving on the corporation counsel, not only the notice before mentioned, but also a copy of the statement of claim filed with' the city clerk. This, as has been observed, contained a statement of all the facts essential to the notice of intention provided for by chapter 572 of the Laws of 1886. " The plaintiff’s counsel offered to prove that on the 21st day óf April, 1894, he served upon the corporation counsel a copy of the claim filed with the city clerk, and ex

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ception was taken to the exclusion of the evidence. This, with the notice served in May following, if they .sufficiently advised the corporation counsel of their relation to each other, would furnish a notice to him of all the facts essential to a notice of intention to sue, and together would seem to have been sufficient. The substance, and not form merely, should control the effect. There would be less doubt about it if the notice served had expressly referred to the statement of claim which had been served upon him. But, in its terms, reference was made to that filed with the city clerk on April 21, 1894. This, it would seem," by relation, called the attention of the corporation counsel to the statement of claim which was served on him that day,* if it was a copy of that then filed. The purpose of the statute on the subject of notice, etc., was not intended'to deny remedy to persons, or to embarrass them in seeking it, for injuries suffered by negligence of municipal corporations, but to guard the latter so far as practicable against imposition, by making early preliminary notice and information essential, and thus .enable the city authorities to then, with more facility than at a later day, inquire into the merits of asserted claims.

Although the question may not be entirely free from doubt, I am inclined to think that the exclusion of the evidence so offered was error, and for that reason the judgment should be reversed, and a new trial granted; costs to abide the event

All concur.

Cases cited

Curry v. City of Buffalo 135 N. Y. 366 N.Y. 1892-10-11 p. 100