
    Berthold Frankel v. Mayor, etc., of New York, Impleaded, etc.
    
      (Supreme Court, Special Term, New York County,
    
    
      Filed October 5, 1888.)
    
    1. Municipal corporation—New York (city op)—City not responsible POR OBSTRUCTIONS DUE TO OTHERS.
    The city is not liable for injuries caused by obstructions placed in the highway by third parties until after notice actual or constructive,
    .2. Same—Laws op 1886—Notice op intention to bring action—Application OP STATUTE.
    The object of the enactment (Laws 1886 chap. 572) is to enable the counsel to the corporation to make such inquiries into the circumstances of any accident which is to be made the basis of an action against the city as may be necessary to prepare a defense to such action It is an enactment of a different character from that which requires the presentation ol the claim to the comptroller at least thirty days before commencement of the action. I Consolidation Act, § 1104.) The object of the latter statute. as appears from its terms, is to give an opportunity to the financial officer of the city to examine the validity of the claim presented, and by adjust ment and payment thereof to avoid the expense of action.
    3. Same—When statute applies.
    The statute (Laws of 1886, chap. 572) requiring notice of intention to brings action applies to an action brought to recover damages for personal injuries wheie it is charged in the complaint that the city negligently suffered a certain obstruction to remain after notice of its existence.
    Demurrer to a defense set up in answer.
    
      Kaufman and Sanders, for pl’ff; Henry R. Beekman, for def’t.
   Patterson, J.

This action is brought to recover damages'for personal injuries sustained by the plaintiff, as appears-by the complaint under the following circumstances.

For more than a year prior to July 1, 1887, an inclined! iron grating or slide projected about five feet in front of certain premises in Franklin street, in the city of New York,, and, as is alleged, formed an unlawful obstruction of the-street, and a public nuisance removable by the city.

The slide was used in connection with a hoistway in the building to which it was appurtenant.

The city had due notice of the existence of the alleged obstruction before May 1, 1887, and it is claimed was guilty of negligence contributing to the injury in not causing the-slide or grating to be removed.

On the 29th day of June, 1887, the plaintiff, while passing along Franklin street, was struck and knocked down by a heavy packing case which was then being drawn along the slide to the hoistway by means of a rope and chain attached to a windlass in the hoistway, the rope or chain breaking and the package, thus being released, falling down the slide upon the plaintiff and severely injuring him.

The complaint also contains allegations charging the owners or occupants, lessees of the property, with negligence, and then sets forth the giving of notice to the comp•troller, as required by the consolidation act, of the claim of the plaintiff.

The defendant, the mayor, etc., answered separately, and among other things, set up as a distinct and specific defense the following:

“Fifth. Further answering said complaint, these defendants allege that the city of New York at all times was and now is a city of over 50,000 inhabitants; that notice of the intention to commence an action for personal injuries, alleged to have been maintained by the plaintiff, and of the time and place at which the said alleged injuries were received, was not filed with the counsel to the corporation of the city of New York, within six months after the cause of action accrued.”

To this fifth defense of the city the plaintiff has demurred, on the ground that it does not constitute a defense to the plaintiff’s cause of action.

This specific defense was evidently interposed by the city to meet a case of personal injuries resulting from negligence of the defendant, and it is founded upon chapter 572 ■of the Laws of 1886, which enacts that no action against a ■city having 50,000 inhabitants or over, for damages for personal injuries alleged to have been caused by the negligence of such city or its agents or employees, shall be maintained unless the same shall be commenced within one year from the accruing of the cause of action, nor unless notice ■of the intention to commence such action, and of the time .and place at which the injuries were received, shall have been filed with the counsel or other proper law officer of the municipal corporation, within six months after the cause of action accrued.

It is claimed in support of the demurrer that this act of 1886, does not apply to the city of Hew York, "and this is inferred from the fact that by section 1104 of the consolidation act, provision is made compelling the giving notice of all claims against the said city to the comptroller, and enacting that no action or special proceeding shall be prosecuted or maintained against the city unless it shall appear by allegation, in the complaint that at least thirty days have elapsed since the claim upon which the action or special proceeding is based has been presented to the comptroller for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentation.

If the subject and purpose of the act of 1886 were identical with the object sought to be accomplished by section 1104 of the consolidation act, there might be some ground for the plaintiff’s present contention, but it is apparent that by section 1104 it was intended that the city should have an opportunity to adjust and pay claims against it without action, and to compel a claimant to give such opportunity, while by the act of 1886, in a particular class of claims, to wit: Those for damages for personal injuries arising from negligence, something additional was to be accomplished, and that is that the proper law officer of the corporation •should, within a specified time, be notified of the intention to commence the action, and of the time and place at which the injuries were received.

This view of the two statutes has been taken by the general term of the court of common pleas (Meyer v. The Mayor, etc., of N. Y., 12 N. Y. State Rep., 674), Judge Daly, for the court, saying: “The object of the enactment in question (chap. 572, Laws of 1886) * * * is to enable the counsel to the corporation to make such inquiries-into the circumstances of any accident which is to be made the basis of an action against the city as may be necessary to prepare a defense to such action.

“ It is an enactment of a different character from that-which requires the presentation of the claim to the comptroller, at least thirty days before the commencement of" the action. Consolidation act, § 1104.1 The object of the latter statute, as appears from its terms, is to give an op-, portunity to the financial officer of the city to examine the-validity of the claim presented, and by adjustment or payment thereof to avoid the expense of action.”

But it is urged on behalf of the plaintiff that the action-, is not for negligence, but for damages caused by the existence of a nuisance, and that therefore the act of 1886 does-not apply, as in terms it is limited to actions arising from negligence.

The complaint does not sustain this contention. It is not-charged that the alleged nuisance was created by the city or its officers or employees, but that the city negligently suffered it to remain after notice of its existence. The city is not liable for injuries caused by obstructions placed in the highway by third parties, until after notice, actual or’ constructive. Hume v. The Mayor, etc., 47 N. Y., 639. Upon such notice being given it becomes the duty of the city to remove the obstruction, or cause it to be removed;, failing to do this is negligence. -

As against the other defendants, a cause of action is set-forth, based upon the placing of a nuisance in the highway. Their liability arises independently of negligence (Congreve v. Smith, 18 N. Y., 79; Congreve v. Morgan, 18 id., 84; Irvine v. Wood, 51 id., 227), but as to the city, it would be responsible on the theory of its negligence. No question has been made upon the pleadings other than those here considered.

The demurrer is overruled, with costs.  