Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, first, that the testimony of defendant’s witnesses, Drs. Johnson and Morse, in reference to then examination of plaintiff’s physical condition with and in the presence of plaintiff’s physician, Dr. Hummel, was competent and its exclusion presents reversible error. (See Capron v. Douglass, 193 N. Y. 11.) Second, that the holding of the trial court as matter of law that plaintiff, within the period required by statute,* presented to the supervisor Of .defendant a verified statement of her claim against the town, was erroneous. All concurred, McLennan, P. J., upon the further ground that the defendant was not shown guilty of actionable negligence.
See Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), §74.— [Rep.