Although it has been held that the statute requiring that a notice of intention to commence an action on a claim for negligence against a municipality affects the remedy and not the right,” the “ procedure rather than the cause of action” (Sheehy v. City of New York, 160 N. Y. 139, 143), nevertheless the law is well established that a substantial compliance with this statute must be alleged and proved as a condition precedent to plaintiff’s right to maintain the action. (Curry v. City of Buffalo, 135 N. Y. 366, 370; Krall v. City of New York, 44 App. Div. 259; Missano v. Mayor, 160 N. Y. 123; Kennedy v. Mayor, 34 App. Div. 311; Mertz v. City of Brooklyn, 33 N. Y. St. Repr. 577; affd., 128 N. Y. 617.)
One of the purposes of this enactment was to afford cities a defense to such causes of action where the law officer who would have charge of conducting the defense had not received formal written notice apprising him that the claimant intended to resort to the courts for redress.
Section 170 of the charter of Buffalo (Chap. 105, Laws of 1891) requires that an abstract of the several steps in actions and proceedings be entered in law registers in the department of law, and section 171 thereof (as amended by Laws of 1895, chap. 805) provides for the keeping of an' accident report book, wherein the names of probable claimants against the city for personal injuries and of material witnesses are required to be entered. Strictly construed, these provisions may not require any entry to be made in these records of notices of intention to bring actions against the city. Such notices, however, become public records which customarily are and should be entered upon the official records of the law department. They are intended not only for the use and guidance of the corporation counsel then in office, but of his successor as well, and also for the information of other public officials who are authorized to oversee, inquire into or investigate the management of the law department. It" is now proposed to hold that the second assistant to the corporation counsel may verbally waive this requirement, upon the street or anywhere, and at any time, without con-*430suiting the corporation counsel or making an entry of such waiver in the official records. I deem the doctrine of the prevailing opinion against public policy and believe it may lead to fraud, collusion and corruption in reviving stale claims, wherein the causes of action have been lost by a failure to comply with the statute. It is not necessary in this ease to decide whether the corporation counsel personally could in any manner or under any circumstances waive service of such notice.
For these reasons I dissent and vote for affirmance.
McLennan, J., concurred.
Judgment reversed and new trial ordered, with-costs to appellant to abide event.