McCarthy v. City of Syracuse

Stoves, J.:

‘ The action is one for damages for injuries received upon a defective sidewalk, so being by reason of the alleged negligence of the defendant.

The court, at the close of plaintiff’s testimony, dismissed the complaint upon the ground that the notice of claim did not state the cause of the accident, and that the notice "of claim was insufficient to apprise the defendant of the cause of action proved.

The evidence showed' that the walk upon which plaintiff Was injured was built upon a slope, and as she stepped upon a board Which' laid upon the slope it broke by reason of its rotten Condition, and she was thereby injured.

The notice of claim set forth that “ your petitioner by reason of the imperfect and defective character, slope, construction and condition of said street and sidewalk, and without any negligence on her part and solely by the negligence of said city, its officers,, employees, agents and servants, your petitioner, wholly unaware of said abrupt incline, then and there, by reason of the condition of the street and sidewalk as aforesaid and by reason of the turning over of her ankle on said incline, broke her left leg, and was in consequence thereof made to suffer great pain and was disabled and prevented from her usual vocations for some time,” etc.

•The contention of the ‘defendant is that the fair construction of the notice is that the injuries, complained of were caused by reason. of the incline upon the walk and not by its defective condition or rottenness, and that the proof upon the trial that the board broke by reason of its defective or rotten condition was such a variance with the notice as to defeat the plaintiffs cause of action.

Section 461 of chapter 182 of the Laws of 1898 (as amd. by Laws of 1899, chap, 581), being known as the White charter for the government of cities of the second class and under which the notice of claim in this action was given, provides, among other things, as follows: “ All claims against the city for damages or injuries to person or property alleged to have been caused by the misfeasance or negligence of the city, or any of its officers or employes, shall be presented to the common council, in writing, within three months' after the happening of the accident or injury out of which the claims arose. Such writing shall describe the time when, the particular place where and the circumstances under which the damages or injuries were sustained and the cause thereof; it shall also state, so far as is then practicable, the nature and extent of the damage or-injuries; it shall also state the place of residence of the claimant by street and number, and, if there be no street or number, it shall contain such statement as will disclose the place of residence; and all such claims shall be verified by the oath of the claimants.”

It further provides that the omission to present such claim within three months or to commence an action thereon within one year shall be a bar to any .claim or action therefor against the city and that no action shall be brought thereon until the expiration of three months after the presentation of the claim to the common council.

The evident purpose of the act was to require such a notice as would fairly inform the city of the time, place, cause and circumstances of the injury in order that it might investigate and determine the foundation upon which the claim rested.

In the case under consideration an investigation would have disclosed the entire circumstances connected with the injury, for an inspection of the locus would ordinarily have been had by some person in charge of the sidewalks, and a casual observation would have shown the exact defect, if still existing, and if repairs had been made the employee or person making the repairs could have given the city full information as to the situation immediately upon the happening of the accident. It is hardly to be presumed that a person falling and receiving serious injury, as is conceded in this case, would, either at the exact time or some time after, be able to furnish an exact and detailed description of the place, and manner of receiving the injury, nor do we think the statute contemplates such exactness; but its requirement is that the notice should fairly and reasonably apprise the defendant of- the accident and the circumstances attendant thereon that it may be enabled by investigation to determine the validity of the claim. These statutes have been held to relate to the remedy and not to the right. (Missano v. Mayor, 160 N. Y. 123.) And it was said in Sheehy v. City of New York (Id. 139) in referring to a similar statute or one having in view similar purposes : “ 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 the 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.”

Parties filing notices of this character must, almost of necessity, frame them so as to cover defects of various natures, as it is quite frequently impracticable, in cases of serious injury, to determine the exact cause, and it is no hardship to place the city upon the defensive, after it shall have had fair notice of the time and place and the general cause and extent of the injuries. This certainly gives a full opportunity for investigation, and it is difficult to see in what manner the municipality can be prejudiced under such a. notice. The notice in this action called attention to various elements which entered into or combined to cause the injury to the plaintiff, the imperfect and defective character, slope, construction and condition of said street and sidewalk. Any one, or all combined, may have produced the injury, and under ordinary rules governing actions of this character, plaintiff would not be compelled to specify with greater particularity the cause or extent of her injuries.

In Stedman v. City of Rome (88 Hun, 279), under section 15 of title 6 of chapter 25 of the Laws of 1870 (added by Laws of 1881, chap. 384), which required the writing to “ describe the time, place, cause and extent of the injury,” a notice in nearly, if not quite, the same language as the one under consideration was held sufficient.

We think, therefore, both upon principle and precedent, that the notice was sufficient to sustain the proof given, and that the dismissal of the complaint was error.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred, except McLennan, P. J., and Hiscock, J., who dissented.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.