
    Ann Arthur, Adm’rx, App’lt, v. The Village of Glens Falls, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Villages—General incorporation act—Presentation and piling notice op CLAIM.
    Section 9, title 3, of the general village act provides that no action shall be maintained against a village for damages for personal injuries or injury to property, unless the claim shall have been presented and notice of the time and place of the injury filed with the village clerk, or duly presented to the board of trustees, within one year after the cause of action accrued. Held, that if such an action be brought within a year from the injury the complaint must allege presentation and notice, and if brought more than a year thereafter it must further allege that presentar tian and notice was within a year.
    Appeal from a judgment and decision of the Warren county circuit, dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    
      Howard & Potter (D. S. Potter, of counsel), for app’lt; King & Ashley (H. P. King, of counsel), for resp’t.
   Putnam, J.

The action is brought by plaintiff as administratrix of her deceased husband to recover damages for his death, which the complaint alleged was caused by a negligent act on the part of the respondent.

The village of Glens Falls is organized under the general village act.

Section 9, title 3, of said act was amended by chapter 440, Laws of 1889. The title of the amended act, and the section as amended is as follows: “An act to amend § 9 of title 3 of chapter 291 of the Laws of 1870, entitled ‘An act for the incorporation of villages.’

“ Ho action shall be maintained against the village for damages for personal injuries or injury' to property alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employee thereof, unless the same shall be commenced within two years after the cause of action therefor shall have accrued, nor unless the claim shall have been presented and notice of the time and place at which such injuries were received shall have been filed with the village clerk or duly presented to the board of trustees within one year after such cause of action shall have accrued.”

There was no allegation in the complaint that the claim had been presented to the board of trustees or filed with the village clerk, or that the notice required by the act had been served. On the trial defendant’s counsel moved to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court granted the motion, plaintiff’s counsel excepting. Counsel for plaintiff stated that they could prove upon the service of a summons and complaint within a year the accruing of the cause of action the board of trustees of the village was convened, the complaint read to them and considered, and by them referred to the village attorney, who was authorized to defend and who has put in a defense, which facts are now offered to be proved.

Defendant objected to the offer, and the court refused to permit the plaintiff to make the proof, plaintiff excepting.

The question is presented whether, under the act of 1889, if the action is commenced within a year from the time of the injury, it is necessary to present the claim therefor and serve notice of the time and place of the accident before the action is commenced, and to allege such presentation and notice in the complaint.

I think the view of the statute taken by the trial judge was correct. The language of the act requires the construction he placed upon it. That “ no action shall be commenced * * * unless the claim shall have been presented,” etc., means that the presentation, etc., must precede the action. Section 9, supra, seems so to read. It should be construed to mean that if an action is brought within a year from the injury the complaint must allege presentation and notice. If commenced more than a year after- the accruing of the cause of action, a presentation and notice within' a year must be stated in the pleading. This construction of the act is the only reasonable one.

Actions against municipal corporations are generally brought for some negligent act of subordinate officers or servants of the municipality committed without the knowledge of the governing authorities. The object of the act is presumably to require the presentation of a claim and a notice of the time and place of the the injury complained of within a reasonable time after its occurrence and before the commencement of an action, so that the corporate authorities can examine into the circumstances and adjust the claim, if desired, and thus prevent the making of unnecessary costs. The construction placed upon the act by the appellant would render that part relating to the presentation of claims and notice of the time and place of the injury to a great extent meaningless.

These views are sustained in Bauer v. The City of Buffalo, 44 St. Rep., 814, and Mertz v. The City of Brooklyn, 33 St. Rep., 577. The last case was affirmed by the court of appeals, 128 N. Y., 617 ; 38 St. Rep., 1014. These cases construe chapter 572 of the Laws of 1886, which requires notice of intention to commence an action, and of the time and place of the injury, to be filed within six months from the time of the accruing of the cause of action. In each of the cases cited the action was commenced within six months, and it was decided that it was necessary to file the notice required by the act prior to the commencement of the action and to allege such filing in the complaint.

Although the notice required by the act of 1889, supra, differs somewhat from that prescribed by the act of 1886, the language of both acts as to the filing of the notice are substantially alike. Both require a notice of the time and place at which the injury complained of was received to be filed in substantially the same language. I conclude, therefore, that the cases cited sustain the holding, of the trial judge and lead to the conclusion that under § 9 of chapter 440 of the Laws of 1889, the presentation of the claim and the filing- of the notice of the time and place at which the injuries were received must precede the commencement of the action, although the action is commenced within a year from the date of such injuries.

The appellant insists that chapter 440, supra, is a “local bill,” and hence violative of the constitutional provision that “ no private or local bill which may be passed by the legislature shall embrace more than one subject and that shall be expressed in the title.”

The answer to this position is that the act in question is not a local or private bill. It applies to the whole state. The cases cited by counsel for appellant show quite clearly the distinction between a local or private bill and a general act, and do not sustain his contention. People v. The Supervisors of Chautauqua County, 43 N. Y., 10; Ferguson v. Ross, 126 N. Y., 459-464 ; 37 St. Rep., 836.

In the latter case, in the opinion, the following language is used : “Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the state, or all things of a certain class,, is a general and not a local act.”

So a bill that embraces all the villages of the state which elect to take advantage of its provisions is a general and not a local act.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  