Hyperlawhypertext legal database Norton v. Mayor, Alderman & Commonalty 74 N.Y. St. Rep. 386

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Norton v. Mayor, Alderman & Commonalty

74 N.Y. St. Rep. 386 Court N.Y. Sup. Ct. Decision date 1896-03-19 English

Delivered by McADAM, J.

Contents

Majority

p. 386
John Norton, Pl'ff, v. The Mayor, Alderman and Commonalty of the City New York, Resp't.
(Supreme Court, New York Trial Term,
Filed March 19, 1896.)

Headnote

1. Mijnicipl couponation—Notice.
Under chapter 572 of 1886, the fact of the filing- of the notice-within six mouths must be set up in the complaint, or a-cause of action is not alleged.
2. Same—Wbitten notice.
When the law requires a notice to be filed, it implies that it shall be in writing.
3. Limitation—Infants.
Infants, like other persons, are barred by an act for limiting suits" at law, if there is no saving clause in their favor. ;
Action for personal injuries.
William Stainton and J. P. Berg, for pl’ff; F. M. Scott and R. C. Beatty, for def't.

The plaintiff on March 12,1895, sustained personal injuries hy reason of the negligence of defendant in respect to the highway known as “Eighth Avenue.”. The defendant moved to dismiss the complaint upon the ground that notice of intention to commence the action had not been filed with the coun

p. 387
sel to the corporation within six months after the cause of action -accrued, as required by chapter 572 of the Laws of 1886. The notice was given, but not until about ten months after the happening of the accident, and the fact is so alleged in the complaint. 'The fact of the filing of the notice within six months must be set up in the complaint, or a cause of action is not alleged. Merz v. City of Brooklyn, 33 St. Rep. 577 ; affirmed, 128 N. Y. 617 ; 38 St. Rep. 1014 ; Curry v. City of Buffalo, 135 N. Y. 366 ; 48 St. Rep. 482 ; Foley v. Mayor, 73 id. 187. The legislature can attach such a condition to the maintenance of either a common-law or statutory action. Reining v. City of Buffalo, 102 N. Y, 308 . It is a condition precedent. Bauer v. City of Buffalo, 44 St. Rep. 814 ; Babcock v. Mayor, etc., 56 Hun, 196 ; 31 St. Rep. 110 ; Dawson v. City of Troy, 49 Hun, 322 ; 17 St. Rep. 559 ; Frankel v. Mayor, etc., 18 id. 241; Sullivan v. City of Syracuse, 77 Hun, 440 ; 60 St. Rep. 674 ; Harrigan v. City of Brooklyn, 119 N. Y. 156 ; 28 St. Rep. 957 , and McDonough v. Mayor, etc., 37 N. Y. Supp. 1 ,—merely hold that in actions ex delicto a demand for adjustment need not be served upon the comptroller, and in no manner affect the proposition involved here.

It is claimed that, because the plaintiff is an infant, the statute not apply to until one year after the disability has been removed. Code, § 396. The answer to this is that the exceptions in the Code do not apply to the statute in question, which is special in its character, and contains no exceptions. Infants, like other persons, are barred by an act for limiting suits at law, if there is no saving clause in their favor. Ang. Lim. (May’s Ed.), §§ 195, 476.

Plaintiff asked leave to amend by alleging oral notice to an attache of the corporation counsel’s office. The amendment, if granted, would be unavailing; for, when the law requires a notice to be filed, it implies that it shall be in writing. Foley v. Mayor, etc., supra.

It follows that the motion to dismiss the complaint must be granted.

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