The evidence in this case fairly tends to establish that as a result of the injury sustained by the plaintiff he was rendered incapable and remained incapable of serving the notice required by the statute within the time therein specified, but that he served a notice within three months after his mental incapacity was removed. We think under such circumstances the notice was served in time within the meaning of the statute. (Walden v. City of Jamestown, 178 N. Y. 213 ; Green v. Village of Port Jervis, 55 App. Div. 58 ; Barry v. Village of Port Jervis, 64 id. 269 ; 93 id. 618 ; affd., 180 N. Y. 521.)
It is, however, urged that the notice as finally served failed to comply with the requirements of the statute because it did not state the date or t.ime of the accident, and clearly such omission would be fatal to plaintiff’s right to recover, provided the defendant had not waived the defect. Subsequent to the service of such notice, at the request of the city clerk the plaintiff and his attorney appeared before the claims committee of the common council and the city attorney of such city and submitted to an examination as to his *618claim and the details of the accident. By such examination the exact location of the accident and the precise time when it occurred were fully stated and disclosed and all the circumstances attending it were given. After such examination the claim was, by resolution of the common'council, referred to the claims committee and the city attorney, whose duty it was to investigate such claim and report back to the common council. After such investigation the committee reported adversely to pilaintiff’s claim, the claim was rejected and thereupon this action was commenced.
We think such action on the part of the defendant was a waiver by it of service of a notice in compliance with the statute and that the defendant was estopped, after requiring the plaintiff to be examined as to the time and circumstances of the accident, from asserting Idiat by his failure to serve a notice as required by the statute he could not. maintain an action to recover damages for the injury sustained by him through the defendant’s negligence. (Grothier v. New York & Brooklyn Bridge, 19 App. Div. 586.)
The same principle is held in Weed v. Hamburg-Bremen Fire Ins. Co. (133 N. Y. 394). By the terms of the policy under consideration in that case it was provided that notice of loss must be given to the insurance company forthwith, and it was held that such notice was not given forthwith, but the court said (p. 407): “ So, too, if the insurance company intends to claim that the notice of loss was not served in time it should take its position promptly and not put the assured to the expense of complying with other conditions in the policy upon the assumption that adequate notice had been given. Here the proofs of loss were- received and retained without any objection that the proper notice of loss had not been given. Hot only this, but the defendant requested the plaintiff to amend his proofs from time to time without any suggestion that the proper notice had not been given. * * * Under all the circumstances, the defendant may properly be held by its conduct to have waived the preliminary notice of loss.”
In the case at bar no objection was made to the notice served by the plaintiff until after the plaintiff, upon defendant’s request, had submitted to an examination before the committee of the common council and city attorney of the defendant, in which he related the date, the place where, the nature and all the circumstances of the *619accident. Under such circumstances, we think it should be held that the defendant waived any defects in the notice of claim served by the plaintifE. This suggestion applies with equal force as to the time when such notice was served.
We conclude that the judgment and order appealed from should be affirmed, with costs.
All concurred, except Spring and Kruse, JJ\, who dissented in an opinion by Kruse, J.