
    Mary Curry, App’lt, v. The City of Buffalo, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Municipal cobpobations—Negligence—Notice.
    The presentation to the common council of the city of Buffalo of a claim for personal injuries and of the time and place of the accident, in pursuance of the charier requirement, is not a compliance within § 1 of chap. 573 of the Laws of 1886, requiring notice of intention to bring such action to be served on the corporation counsel.
    Appeal from judgment of the supreme court, general term, second department, denying motion for new trial and ordering judgment for defendant on nonsuit
    
      Adelbert Moot, for app’lt; Philip A. Laing, for resp’t
    
      
       Affirming 31 St. Rep., 745.
    
   Earl, Ch. J.

The plaintiff brought this action to recover damages for personal injuries received by her from falling upon a sidewalk, in reference to which she charged the defendant with negligence.

The plaintiff was nonsuited at the trial, solely upon the ground that she had not complied with § 1 of chapter 572 of the Laws of 1886, passed January 4th of that year, by giving the notice-there required of her intention to commence the action.

She received her injuries on the 18th day of December, 1887, and on the 29th day of May thereafter she delivered to the city clerk and the comptroller a petition addressed to the common council, in which she stated the nature of her injuries, and when, where and how they were received; that they were caused by the bad condition of a sidewalk negligently left by the city out of repair and in a dangerous condition, and that her damages were $5,000, and she prayed for an order for that sum. The presentation of her claim to the common council by her petition was a-compliance with § 7 of title 3 of chapter 519 of the Laws of 1870, as amended by § 8 of chapter 479 of the Laws of 1886, passed May 27th of that year, which section is as follows: “It (the common council) shall audit all claims against the city, but no unliquidated claims shall be received for audit unless made out in detail, specifying if for labor or services, the time when, the place • where, by whom and under whose direction and by what authority performed; if for merchandise, material or other articles fur-, nished, the items thereof, by whom ordered, and when and to' whom delivered; and if for damages for wrong or injury, when, where and how occasioned; nor unless accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made, and that no set-offs exist except those stated Mo action or proceeding to recover or enforce any such claim against the-city shall be brought until the expiration of forty days after the-claim shall have been presented to the common council for audit-in the manner and form aforesaid.

“ The common council before auditing any such claim shall refer it to the auditor. If such claim shall not be made out or verified as above required, the common council may within thirty days after its presentation refuse on that ground to audit it. All actions brought against the city to recover damages for personal injuries caused by negligence shall be commenced within one year from the time of receiving the injuries.” The action was commenced -J uly 23, 1888, and after that § 7 was again amended, and re-enacted as amended in chapter 318 of the Laws of 1889. The amendment required claims for a wrong or injury to be presented within six months after the wrong or injury occurred. As the amendment was after the commencement of this action, it is in no way material to be now considered.

The purpose of § 7 was to regulate the powers and duties of the common council in the audit, allowance and payment of claims against the city, and the main features of the section, with-more or less similarity, are found in the charters of many o£ tlie cities of this state. The provisions of the section are not inconsistent with the provisions of § 1 of chapter 572 of the Laws of 1886, and both sections can stand together and have full operation. The provisions of § 7 are not in all city charters, and are not precisely the same in any of them, and hence § 1 was intended as a general provision applicable to all cities of the prescribed size. It is as follows: “ No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, -officer, agent or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the •cause of action therefor shall have accrued, 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 to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

The learned counsel for the plaintiff contends that this section applies only to the city of New York, as that is the only city whose corporate name is the “ Mayor, Aldermen and Commonalty." But it was clearly intended to apply to all cities of the prescribed size, and so it was held in Merz v. City of Brooklyn, 33 St. Rep. 577, affirmed in this court in 128 N. Y., 617; 38 St. Rep., 1014, The section is imperative. The action cannot be maintained unless notice of the intention to commence it and of the time and place of the injury “ shall have been filed with the counsel to the •corporation,7 and a failure to file the notice furnishes a defense to the action. The filing of the notice is a condition precedent to "the maintenance of the action. Reining v. City of Buffalo, 102 N. Y., 308; 2 St. Rep., 10; Merz v. City of Buffalo, supra ; Dawson v. City of Troy, 49 Hun, 322; 17 St. Rep., 559.

The commencement of the action cannot be considered as a notice of intention to commence the action, because the notice must be filed before the commencement of the action, and as a condition to the maintenance thereof.

The whole matter of the maintenance of this class of actions was within the control of the legislature. It could refuse a right •of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions. It could require notice of the intention to commence them to be served both upon the common council and upon the corporation •counsel, and an act requiring the one notice would not be inconsistent with an act requiring the other. Here the legislature required the presentation of the claim to the common council for its notion thereon, and the notice to the corporation counsel for his information and to govern and influence his official conduct. These actions against cities are numerous, and the legislature seems to have been solicitous to protect them so far as possible .against unjust or excessive claims and also against the improvident or collusive allowance of such claims by municipal officers.

The prevailing opinion in the court below contains a very satisfactory discussion of the questions involved upon this appeal, audit) ut for the zeal of the learned counsel for the plaintiff and the alleged importance of our decision as bearing upon other pending actions, we should not have deemed it important to do more than, to refer to that opinion for the grounds of our affirmance of the judgment.

Our conclusion is that the judgment should be affirmed, with •costs.

All concur.  