Sheehy v. City of New York

SHEEHY

2.

CITY OF NEW YORK.

(Court of Appeals of New York, Oct. 3, 1899.)

Evidence.*The

Personal Injuries - Notice of Intent to Sue statute of New York, providing that a notice of intent to sue the city of New York for personal injuries caused by negligence shall be filed with the corporation counsel within six months after the cause of action accrued, states in general terms the nature of the notice, but does not prescribe its form; and plaintiff in such an action, in order to show compliance with the statute, was entitled to prove that one of the books kept in the office of the corporation counsel contained an entry showing that he had received a notice of intention to bring the action which he regarded as the notice required by the statue, and specifying the name and residence of plaintiff, the date of the notice, the cause of action, the date and cause of the accident, and the nature and location of the defect.

Same Same.-Under such statute, where an effort has been made to comply with its provisions in regard to notice of intent to sue the city for personal injuries, and the notice served, when reasonably construed, is such as to provide means by which the city can more readily pursue an investigation as to the merits of the claim than if longer postponed; the notice is sufficient.

Same-Same. The notice required by such statute relates to the remedy, and not to the right; and it is not quite correct to term it a part of plaintiff's cause of action.

APPEAL by plaintiff from First department appellate division supreme court. Reversed.

David McClure, for appellant.

Theodore Connoly, for respondent.

MARTIN, J. Only a single question was passed upon by either of the courts below, and is the only one presented for

*See generally Lyons v. City of Red Wing, 1 Mun. Corp. Cas., and note, 489.

Sheehy v. City of New York

review by this court. It relates to the construction of chapter 572 of the Laws of 1886, and is whether the notice served by the plaintiff was a sufficient compliance with that statute. That act, in effect, provides that no action shall be maintained against the city of New York for damages for personal injuries alleged to have been caused by its negligence, unless notice of the intention to commence such action shall have been filed with the counsel for the corporation within six months after the cause of action accrued. That the plaintiff endeavored to comply with this provision of the statute, and that it was understood by the corporation counsel to have been complied with, there can be little doubt. The accident which was the basis of this action occurred on the 22d of September, 1894. On the 10th of the following November the plaintiff prepared a notice, which was filed in the office of the corporation counsel on November 12th, and was as follows: "In the Matter of the Claim of Agnes Sheehy against the Mayor, Aldermen, and Commonalty of the City of New YorkGentlemen: Please take notice that Agnes Sheehy claims and demands from the mayor, aldermen, and commonalty of the city of New York five thousand dollars damages for personal injuries sustained by her by falling upon the sidewalk on the west side of Washington avenue, in the city of New York, between One Hundred and Seventy-Fourth and One Hundred and Seventy-Fifth streets, on the 22d day of September, 1894; there being at the time a deep hole or depression in the sidewalk at that point, and the street gaslights not being lit. Dated New York, November 10th, 1894. Respectfully yours, Agnes Sheehy, Claimant. R. & E. J. O'Gorman, Attorneys for Agnes Sheehy, 49 and 51 Chambers Street, New York City. To Hon. Ashbel P. Fitch, Comptroller, and Hon. William H. Clark, Counsel to the Corporation." The contention of the respondent, which has prevailed in the courts below, is that the notice was insufficient, because it contained no statement of an intention to commence an action. The point upon which this appeal must turn is a very narrow one, and is whether the notice filed was in substantial

Sheehy v. City of New York

compliance with the requirements of the statute in that respect. The statute prescribes no form, although it states, in general terms, the nature of the notice required. Its purpose was that a notice should be given which would inform the law officer of the city of the nature of the claim, Notice of Intent the place where and the circumstances under which it arose, and of a purpose on the part of the plaintiff to enforce it. That the notice in this

Personal Injuries

to Sue

Evidence.

case entirely fulfilled this purpose the plaintiff offered to prove, but the evidence was rejected. She offered to show that one of the books kept in the office of the corporation counsel contained the following: "Notice of intention to commerce action, chapter 572, Laws of 1886. Nov. 10. Agnes Sheehy; R. & E. J. O'Gorman, 49-51 Chambers street. Sept. 22, '94. West side of Washington avenue, bet. 174th & 175th St. Personal injuries caused by falling into a deep hole in sidewalk. $5,000 claimed." This evidence, if admitted, would have shown that the notice given by the plaintiff was received and filed in the proper office, that the law officer of the corporation plainly regarded it as the notice provided for by the statute, and that it answered every purpose for which it was intended. We think this evidence was clearly admissible, and that the plaintiff's exception to its rejection was well taken.

Same-Same.

Moreover, we are of the opinion that the notice was suffi cient, when construed in the light of the circumstances existing at the time, and that it indicated upon its face an intention on the part of the plaintiff to enforce her claim by suit, if necessary. It is entitled in the matter of the claim of the plaintiff against the city. It declares that the plaintiff claims. and demands from the city damages for personal injuries. It is signed by the plaintiff, and by her attorneys as well, the latter giving their post-office address, as required on formal papers in legal proceedings. No statute existed, except the act of 1886, under which such notice could have been filed with the corporation counsel. He could never

Sheehy v. City of New York

have supposed that the notice was idle or gratuitous, but must have understood that it was served under the statute. If the rejected proof had been admitted, it would have shown clearly his understanding of the purpose of the notice, and of the intent of the plaintiff to enforce her claim. The plain object of this statute was to provide means by which a city could better guard against the imposition of unfounded claims by being at once informed of their existence, so that its officers might more readily pursue an investigation of their merits than if longer postponed. On the other hand,

it could not have been its purpose to deny to a party injured by the negligence of a city any remedy against it, nor to unnecessarily embarrass parties in the enforcement of their rights. While, in an action like this, the statute must be substantially complied with or the plaintiff cannot recover, still, where an effort to comply with it has been made, and the notice served, when reasonably construed, is such as to accomplish the object of the statute, it should, we think, be regarded as sufficient.

The claim that the service of a proper notice, under the statute, constituted a part of the plaintiff's cause of action, is not quite correct. The absence or presence

Same-Same.

of such a notice relates to and affects the procedure, rather than the cause of action. It relates to the remedy, and not to the right. This we have held in the Missano Case (decided at this term, but not yet officially reported) 54 N. E. 744.

We are of the opinion that the trial court erred in rejecting the evidence of the entry made in the books of the corporation counsel, in holding that the notice in this case was insuffi cient under the statute, and in dismissing the complaint upon that ground. For these reasons the judgments of the trial court and of the appellate division should be reversed, and a new trial granted, with costs to abide the event. All concur (PARKER, C. J., on the ground that the notice given was in substantial compliance with the requirements of the statute). Judgments reversed, etc.

City of Huntington v. Folk

CITY OF HUNTINGTON

υ.

FOLK.

(Supreme Court of Indiana, Oct. 5, 1899.)

Pleadings-Amendments. When an amended pleading is filed it supersedes the original, and the latter goes out of the record. Same-Appeal-Record. When a pleading upon which error is specified on appeal to the supreme court is absent from the record, no question in respect to its sufficiency can be considered.

Superseded Pleadings-Appeal-Record.—Where an original complaint superseded by an amended complaint is not in the record, and has not been incorporated therein by a bill of exceptions, it cannot be considered on appeal for any purpose.

Continuance-Same-Same.-An application for a delay or continuance of a cause is addressed to the sound discretion of the trial court; and where it is not clearly disclosed on appeal that such discretion has been abused, to the injury of the complaining party, the refusal to grant the continuance will not be available error.

Defective Sidewalk-Personal Injuries-Knowledge of Defect.*In an action against a municipality for plaintiff's personal injuries caused by the defective condition of a sidewalk, the fact that plaintiff was aware of the defect before the accident will not preclude recovery, unless it appears that she knew that such defect was of a dangerous character.

APPEAL by defendant from Wabash county circuit court. Affirmed.

France & Dungan, Kenner & Lesh, and O. H. Bogue, for appellant.

Spencer & Branyan, for appellee.

JORDAN, C. J. Appellee sued in the Huntington circuit court to recover damages for personal injuries sustained by her through appellant's alleged negligence in maintaining a defective sidewalk. The venue of the case was changed to the Wabash circuit court. There was a trial by jury in the latter court, and a general verdict *See note, 1 Municipal Corp. Cas. 490.

Case Stated.