Duff v. Mayor of New York — 60 N.Y. Super. Ct. 29

Majority

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FANNIE J. DUFF, Appellant v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

Headnote

Notice required under Chap. 578, Laws 1SS6, of intention to bring action— What sufficient compliance with statute.

Under the provisions of Chap. 572 Laws 1886, no action brought against the mayor, etc., of any city having fifty thousand inhabitants or over to recover damages for personal injuries caused by such mayor, etc., 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 such injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have been accrued. The action was brought to recover damages for personal injuries sustained through defendant’s negligence on June 4, 1888. Notice of the time and place of the accident and of the claim made therefor was only filed with the comptroller on September 24,1888, and onNovember 5,1888, the summons and complaint were served on the corporation counsel. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that no notice of intention to commence suit had been filed with the counsel to the corporation, which motion was granted. Held error, that the service of the summons and complaint was a sufficient compliance with the terms of the statute.

Before Freedman, P. J., Dugro and Gildersleeve, JJ.

Decided October 10, 1891.

Appeal by plaintiff from an order dismissing the complaint and directing exceptions to be heard in the first instance at the general term. The facts are sufficiently stated in the head note.

Douglas A. Levien, Jr., attorney for appellant.

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William H. Clark, counsel to the corporation, and Theodore Connoly of counsel, for respondent.

We are disposed to apply the reasoning in Meyer v. The Mayor, et al., 14 Daly, 395 , and Denair v. The City of Brooklyn, 5 N. Y. Supp., 835 , 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 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 , and Babcock v. The Mayor, et al., 56 Hun, 196 , 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.