dissenting:
I think the giving of the notice of injury in the form and in the manner prescribed by statute, and upon the person designated, is a condition precedent to the right of plaintiff to maintain his action; and that the complaint, having failed to allege such facts, the demurrer thereto was properly sustained. In City of Denver v. Saulcey, 5 Colo. App. 420, 422, it is said: “The notice must not only contain all the thing's the statute requires, but it must be served on the persons which the law designates, and in the way specified, if the statute be specific in this particular. * * * The importance of making the service on the proper person has been a matter of judicial consideration, and it has accordingly been adjudged that where the service must be upon a trustee or upon a mayor or upon a council, service upon the clerk, even thoug'h he be one of the principal officers of the corporation, is not such a compliance with the provision as to permit the maintenance of the suit.” Citing Nichols v. The City of Boston, 98 Mass. 39 ; Underhill v. The Town of Washington, 46 Vt. 767; Wade on the Law of Notices, secs. 1312, 1313.
And in 28 Cyc., p. 1459, it is said that: “Service of notice or presentation of the claim must be made in the manner prescribed by the statute; or, if not prescribed, then as provided by general law for the service of notice, and within the time prescribed. The notice or statement must be served upon or presented to the board or officers designated in the statute to be notified, such as the corporation counsel, or city council.”
It may be that if the city clerk and council'were, in fact, presented with the notice within the time limited by the stat*565ute, it would be a sufficient, service upon the clerk, though it had actually been brought before him by the mayor. But I am unable to find in the complaint any fact alleged that would warrant the conclusion, or even inference, that these things occurred. How it can be said that the allegation “that the mayor, clerk and board of aldermen all had full notice of the accident and plaintiff’s injuries in their official capacity within ninety days thereafter,” “may be- construed to charge that the mayor, clerk and council were in fact presented with the notice so served on the mayor” is beyond my comprehension. Neither can I conceive that there is anything ambiguous in the language quoted from the complaint. How can it be said that an allegation that certain persons, “had full notice of the accident and plaintiff’s injuries in their official capacity” is in any wise ambiguous ? There is not the slightest intimation in such allegation that the notice of the injury required by the statute, as a condition precedent to plaintiff’s right to. maintain the action, had ever been brought before the clerk or the council, or that they had knowledge of its existence. It is said in the opinion that “there is no claim that the city council did not have full or sufficient notice, or that they did not act on it.” The very fact that a demurrer was filed to the complaint upon the ground that it failed to. state facts sufficient to constitute a cause of action in respect to the service of the notice, is essentially a claim that the city did not have full and sufficient notice to make it. liable under the statute. Moreover, that which the statute required the plaintiff should do, as a condition precedent to maintain his cause of action, can not be legally excused by the courts, even though the latter should think the requirement harsh or unwise. To do so is to annul legislation and determine the rights of litigants, not in accordance with the law of the land, but as the court thinks the law should be.
I am authorized to state that Mr. Justice Hill and Mr. Justice Garrigues concur in the views I have herein expressed.
*566Gabbert, J.There is an additional reason why the judgment should be reversed. The plaintiff’s cause of action is the alleged negligence of the city. In order to maintain his action, unless legally excused, he is required to give the statutory notice. The purpose of this notice is to afford the municipal authorities opportunity to investigate his claim, and take steps to' protect the city. It is, therefore, solely for the benefit of the city, and service upon the official designated in the statute may be waived. In my opinion, the complaint alleges facts from which it appears that service of notice upon the clerk was waived.