
    Charles McMullen, Plaintiff, v. The City of Middletown, Defendant.
    (Supreme Court, Orange Special Term,
    February, 1905.)
    Municipal corporation — Icy sidewalk — Action to recover for personal injuries' — Written notice to city — Constitutional law.
    A provision of a city charter that no action shall be maintained for damages or injuries to the person sustained in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street unless written notice thereof, relating to the particular place, was actually given 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 receipt of such notice, is unconstitutional as taking away the right of action altogether and in that way destroying a property right.
    
    Demubbeb, to complaint upon the ground that the complaint failed to allege the service of written notice of the defect in the sidewalk, as required by the charter of the city of Middletown, before the accident occurred.
    E. N. Oakes, Thomas Watts and William Vanamee, for plaintiff.
    Russell Wiggins, for defendant.
    
      
      See charter of the city of Middletown, L. 1902, ch. 572, § 30.
    
   Dickey, J.

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.

The 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.  