I think the complaint should not have been dismissed. It states a good cause of action. It is not necessary to show by direct evi*704dence that notice of the defect had been given to the mayor or clerk.' That fact may be established indirectly, by circumstances.
The duty of maintaining streets and sidewalks in the defendant. city is upon the commissioners of public works, of which the mayor is chairman. (See Laws of 1905, chap. 142, §§ 119, 124.) If a person employed by the commissioners and one of the commissioners himself had notice of the defect, as is claimed by the plaintiff, that fact, with the surrounding circumstances, in the absence of any proof to the contrary is sufficient, as I think, to show that the mayor had actual notice of the defect. Such an inference is entirely reasonable.
A motion to dismiss the complaint upon the opening practically challenges the sufficiency of the complaint (Hoffman House v. Foote, 172 N. Y. 348); and counsel’s opening should be considered in connection with the allegations of the complaint.
Furthermore, the object of requiring notice to the mayor or clerk is, that the officers whose duty it is to maintain the streets and sidewalks are apprised of the defect, to the end that the officers may make them safe. That duty is imposed by the defendant’s charter upon the commissioners of public works, as has been stated ; not upon the mayor or clerk. If the commissioners had actual notice of the defect in question, as is claimed, nothing further wuuld be accomplished by giving notice to the mayor or clerk. It seems to me that under such circumstances, it was not necessary to give notice to the mayor or clerk to make the city liable for the failure of its- officers to perform a duty which the statute imposes upon the city.
I vote for reversal.
Williams, J., concurred.
Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant, with costs.