Section 261 of the Greater New York Charter, in effect at the time this action was instituted, provides as follows: “ No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the city of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment * * (Italics mine.)
The complaint alleges: “That prior to the commencement of this action and within the time prescribed by law, a notice in writing setting forth the time, place and cause of action herein complained of, was duly served upon the Corporation Counsel and the Comptroller of the City of New York. That more than thirty days have elapsed since the service of said notice and that no compromise of said claim has been made.”
This is not a compliance with the requirements of the Charter. It appears that the accident in this case occurred on October 21, 1935. Notice (to which further reference will be made later in this opinion) was served on the city officials on November 21, 1935. Plaintiff was notified to appear for examination before the city comptroller on December 16, 1935. The examination was adjourned from time to time and, finally, was held on March 23, 1936. A stipulation, dated January 24, 1936, provided for an adjournment to February 24, 1936, and then set forth the following: “ Such adjournment is without prejudice to the Comptroller’s right to settle or adjust said claim within the same period of time after such examination is held, as the Comptroller had from the date set originally for such examination, and that no action be •brought during such period of time.” I
Notwithstanding this stipulation, the action was commenced on February 3, 1936, before the comptroller had the opportunity of passing on the merits of the claim.
In Casey v. City of New York (217 N. Y. 192) the Court of Appeals said: “ The fact of the comptroller’s neglect or refusal I to pay or adjust plaintiff’s claim was an essential part of her causel *199of action, to be alleged and proved by her. ‘ Municipal liability for injuries is a matter that is within the control of the Legislature and when it is enacted what that liability shall be, and the conditions upon which it may be enforced are prescribed, the statutory provisions are controlling upon the subject.’ (Winter v. City of Niagara Falls, 190 N. Y. 198, 203.)”
It is urged on the part of the plaintiff that no motion was addressed to the sufficiency of the complaint; that had the question been raised, the complaint could have been amended and proof of the essential facts supplied sufficient at least to support the inference of “ neglect ” to adjust if not a “ refusal.” All that the city was called upon to do was to answer the pleading as presented. It was not incumbent upon the city to call attention of counsel to defects therein. The sufficiency of the complaint could be attacked at any time. (Civ. Prac. Act, § 279.) The record here discloses that the plaintiff was confined to a hospital for a little over three months following the accident, and the adjournments of the examination by the comptroller were requested by the attorney for plaintiff. In view of these circumstances and bearing in mind the stipulation of January 24, 1936, quoted above, it may not be said that the plaintiff has been in any way prejudiced by lack of opportunity to present evidence on the trial. As the Court of Appeals said in the case of Casey v. City of New York (supra). “ The comptroller is entitled to examine the claimant to ascertain whether or not an adjustment or settlement ought to be made. If he seeks such an examination, and for no other reason than lack of information as to the merits of the claim, due to claimant’s inability to appear for such examination, fails to pay or adjust the claim, it cannot be said that his failure to pay is a neglect or refusal to make an adjustment or payment. It should appear that he has waived or otherwise lost the right to examine the claimant. (Tolchinsky v. City of New York, 164 App. Div. 636.)”
The notice which was served on the city officials on November 21, 1935, omitted to state the date of the accident. This defect was fatal. (Weisman v. City of New York, 219 N. Y. 178; Rogers v. Village of Port Chester, 234 id. 182.) The stipulation of February 25, 1936, did not relieve the plaintiff of the failure to comply with the provisions of chapter 484 of the Laws of 1933 (amdg. Laws of 1886, chap. 572, § 1).
The judgment appealed from should be affirmed, with costs.
Untermyer and Dore, JJ., concur; Callahan, J., dissents in an opinion, in which Cohn, J., concurs.