To the executive board of the city was commited the charge of the streets. Its duties were numerous and the details were necessarily intrusted to agents to carry out and to execute its orders. It did not in fact ordinarily receive complaints of defective streets. The practice appears to have been that these notices were given to *599clerks. The board was in session daily in a room provided for that purpose. Its meetings were to consider and perform the general duties devolving upon it. These meetings were not public. The board was not in session to enable citizens to run in before it and advise its members personally that a stone was upheaved on the sidewalk in Main street, that there was an accumulation of snow on East avenue, or a plank out on Smith street. The whole time of the board would be occupied in listening to petty complaints of that character if the “ actual notice ” contemplated by the statute was restricted to a personal interview with the board. To give practical effect to this requirement the board had an outer office. In this were clerks and employees, and to this room the public were admitted. Each individual who had a complaint to make as to the condition of the streets, made it to one of these employees who received them on behalf of the executive board. Nor was any particular one of these employees especially charged with the performance of this duty. Any one of them in attendance received these complaints. Originally they were noted down on a blotter prepared for the purpose. Later this was abandoned and a pad used. This room was an adjunct of the main office, and the proof is that it was here, and to these employees without variation, that the notice of defective streets was given. By long practice, by unquestionable recognition, the board had accepted this as the mode by which the actual notices should be given, so that the public by its action was led to believe that a notice so tendered was a compliance with the statute.
The board was responsible for the mode of carrying out the statute. It first put a practical construction upon it and the publics conformed to it. The evidence shows that Roswell Clark was employed in this office by the executive board. Complaints were frequently made to him as the employee or representative of the board. In fact they were made to whomsoever took them behind this counter. The complainant in every case would not know each clerk or employee, or his relation to the board. He only knew that this was the place to present complaints to the board, and the medium was the clerk or attendant behind the counter. The notice in this case was given the same as in others. There was no departure from the uniform course of procedure. In Sprague v. City of Rochester *600(159 N. Y. 20) this same provision of the charter was under discussion. At the time of the alleged notice in that case there was a superintendent to whom was generally committed the actual control of the streets as an administrative function. There were, however, two foremen in charge of sidewalks, and a like number looking after the streets, and under each of these were inspectors who did the work of repairing, and without communicating with the executive board. The notice was given to one of these inspectors, and the court held this was adequate. They were not officers provided for by the charter. They were simply employees provided for by the executive board to máke effective its execution of the obligations intrusted to it. As was said in that case at page 26 : “ While the foremen may not be city officers in one sense, they are in another. * * * The duties of the board are so numerous and important as to embrace a large part of the government of the city. Obviously the Legislature did not contemplate that these three men should look closely after details, but that they sliould take general charge, give general directions, and to a great extent delegate their powers to subordinates. In no other way could the work of the city be done. It is not reasonable to believe that the Legislature intended that personal notice of every defect in the entire system of sidewalks-should be given them in order to enable citizens to obtain redress for injuries owing to a failure to repair,” and the court further held that the section should receive a strict construction against the city, as it creates a new rule in limitation of the general -liability imposed upon the municipality. As I view that case, it is in line with the present one. The foreman of the streets possessed power delegated by the board, and his official functions were recognized by the body under whom he acted. In this case Clark was. an employee of the board, acting within the recognized scope of his authority, at the place provided by the board, and in the manner usual in the execution of duties of this kind in that office. If an employee on the street can receive actual notice on behalf of the board, because as a subordinate he actually makes repairs, by parity of reasoning, an employee in the office, chargeable with that duty, can likewise bind the city by accepting notice of the defect.
The case of McNally v. City of Cohoes (127 N. Y. 350) simply held that the fact that the superintendent of streets passed over *601the defective walk did not meet the actual notice required by the city charter. There was no actual notice to any one in that case. The object of the provision was to obliterate the doctrine of constructive notice, and there is no contention in this case that the requirement of actual notice can be disregarded. The pivotal point is whether the notice proved comes within a reasonable construction of the statute. W as it “ actual notice ” within the fair intendment of the law?
Again, it is a circumstance to be observed that the charter expressly vests authority in the board to “ employ such assistance -x- -x- -x- as ^ may see fit ” (Laws of 1880, chap. 14, § 152). This explicit warrant implies what is obvious, that the board, with its important functions, was to perform them largely through its agents or servants.
While the law seems to me clear that this is the reasonable interpretation of the statute, it is unnecessary to go to that extent in this case. The proof shows that the notice was given to Clark in the office during the time such notices were accustomed to be given ; that he took one of the pads and commenced to write, and during1 his writing asked of the complainant what particular part of the walk was defective, and the information was given and he continued to write. Two facts the jury might find from what occurred in the office : First, that Clark .made a memorandum of the complaint ] and, second, that this was turned over to the board. Undisputed, the presumption is that the usual practice was conformed to, or, at least, it was for the jury to determine whether the notice reached the board or not. The board possessed the knowledge. It was for its membei's to acquaint the jury with the real fact as to receiving the notice, if its actual reception were important. The jury, under the evidence as it stood, could have found that the board was made the final repository of this information in accordance with the mode in vogue by its assent. It was error to take that question of fact from the jury.
The jfiaintiff’s exceptions should be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.
All concurred, except McLennan, J who dissented in an opinion,