The demurrer interposed in this action is based on the failure of the complaint to contain an allegation that a written notice of the existence of the snow or ice on the sidewalk was actually given to the common council and there was a failure or neglect to cause such snow or ice to be removed or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice. The claim being that it is a condition precedent to recover for a claimant to allege and prove that such a written notice was served on the common council by somebody.
*361The complaint contains an allegation that the defendant had knowledge or notice of the dangerous condition of the sidewalk for upwards of two weeks, which is an allegation of actual notice of its condition.
As the duty is imposed on the city to keep its sidewalks in a reasonably safe condition, it appears to me that the requirement of the charter, that to recover for personal injuries received because of the neglect of the city in not keeping its sidewalks in a reasonably safe condition it must be shown that a written notice of the dangerous condition had been given to the common council, is so unreasonable that the provision of the charter in that respect cannot be upheld.
The courts have held good a provision that to recover in such cases there must be an actual instead of a constructive notice to the city authorities, but so far as I can find there has yet been no approval of this additional requirement of a written notice.
To my mind the enforcement of such a provision would practically take away the right of action altogther and in that way destroy a property right. It may be held that it was in the power of the legislature to so restrict or destroy the right of action, but I will not do it in the first instance.'
- Demurrer overruled with costs, with leave to answer.
Demurrer overruled with costs, with leave to answer.