
    Frederick A. Kleyle, Respondent, v. The City of Oswego, Appellant.
    Fourth Department,
    November, 1905.
    Negligence — injury by fall on icy sidewalk — notice of claim, when sufficient —■ defects in notice cannot be cured by amendment at trial —weight of evidence.
    When, a city charter requires that to create a liability for injuries received on dangerous sidewalks, actual notice of. the defect be given to “ the common . council,, the department of works, or the superintendent of works,” such notice is not shown by mere testimony of a third person that á week before "the plaintiff Was: injured by falling on an icy sidewalk he had -notified the superintendent of winks that he had 'fallen on the same sidewalk, but said nothing about ice or'snow thereon.
    Where said City charter requires that claims for damage shall be properly verified and describe the time, etc., of the injuries, the court>has no authority to amend an erroneous venue in the verification to such claim, nor can an -error in the date of injury be cured by amendment at trial, as such affidavit, and notice are not proceedings in an action.under section 723 of the Code of Civil Procedure. The error of a notary, in-the verified claim filed, in not stating the venue as in the county, in which the affidavit is made, and an error, which is merely a mistake of one day in stating the date of the accident, are not such substantial errors as will bar a recovery.
    When it is' shown that the ice in question only covered a portion óf the sidewalk and that there was a clear space of some fifteen feet-inside, a verdict for the plaintiff is against the weight of evidence.
    Appeal by the defendant, The City of Oswego, from a judgment of the Supreme Court in favor of the plaintiff, entered iñ the office of the clerk of the county of Oswego on the 4th day of February, 1905, upon the verdict of a jury for $500, and also from, an order entered in said clerk’s office on the 10th day of February, 1905, denying the defendant’s motion for a new trial made upon the minutes. -
    
      John Tiernan and George N. Burt, for the appellant.
    
      Thomas L. McKay and James R. O’ Gorman, for the respondent.
   Williams, J.:

The judgment and order should be reversed upon questions of law and fact and a new trial granted, with costs to the appellant to abide event. . .

The action is for damages for personal injuries claimed to have resulted from the defendant’s negligence.

The plaintiff on December 11,1902, slipped on an icy sidewalk in the defendant city and fractured his wrist.

The defendant’s charter (Laws of 1895, chap. 394, § 345) provides : “ The city of Oswego shall not be liable for the damage or injury sustained by any person, in consequence of any sidewalk or crosswalk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice or otherwise, unless actual notice of the defective, unsafe or obstructed condition of said sidewalk or crosswalk shall have been given to the common council, thé department of works or the superintendent of works, at least forty-eight hours previous to such damage or injury.”

■ The plaintiff attempted to prove this notice by the witness Ryan, who testified that he told the superintendent, of works about a week before this accident that he, witness, had just fallen on this walk, and that the condition of things on this street was' worse than in •the back part of the wards'; but did not tell him about the snow and ice on this walk. Considerable discredit was thrown upon this witness’ evidence, and the superintendent of works denied the conversation entirely. Whether the talk occurred as testified by Ryan may very likely have been a question of fact for the jury.

Assuming it to have taken place as Ryan states, however, it was hardly such a notice to the superintendent as constituted a compliance with the statute. He did not tell him his own fall was caused by ice or snow on the. walk; did not mention snow or ice at all; and there was no proof as to the condition of the walks in the back part of the wards, with which this walk was compared, or that those walks were obstructed by ice or snow.

Upon this evidence the court was hardly justified in submitting to the jury the question of actual notice to the superintendent of works of the dangerous and defective condition of the walk in compliance with the statute quoted. Certainly the finding by the jury that such notice was given, as they must have done in order to render a verdict for plaintiff, was contrary to the evidence in -.the-case. .

Section 345 of the charter further provides: All claims against the city for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed' condition' of any "street, crosswalk, sidewalk, culvert or bridge of the city, or from negligence of the city authorities in respect.to any. such street,,Crosswalk, sidewalk, ctilvert or bridge, shall, within three months after, the happening of such damage or injury, b.e presented to the common council by a writing sighed by the claimant, and properly verified, describing the time, place, cause and extent of the damage or injury.The omission to present such claim as. aforesaid, within said three months,, shall be a bar to any action- or proceeding therefor against the city.” ’

In attempted-compliance with this statute theplaintiff on March 1903, presented, a claim to the common council, stating the; date of the accid'ent as December 10 instead of December ll, Í902. ■ "The venue of the affidavit verifying the claim was the city and county of Oswego, but the affidavit was taken before a notary, who affixed Ms seal, and both his signature and seal stated he was an official of New York county. ■ '

The court permitted plaintiff to -show by parol that he made the. affidavit in New. York city before. ,a notary- of that city, and thereupon the coUft permitted the venue to be amended by striking out the word “ Oswego”" and' inserting, the words “New York” as a -clerical error-merely.

The court had no authority -to make, this amendmént. ' We know óf nó rule of - law-permitting it to be done. The only question is whether this error, apparently a mistake, Could be disregarded and the verification be held to be a substantial compliance with the statute. - - . - ■

■ Upon-the proof in the casé we" think.the affidavit should' not be regarded as á nullity. (Babcock v. Wants sell, Hun, 33-35.)

It was suggested in that case that an amendment might be made,, but the paper there was an affidavit for a requisition in replevin, and was covered by section. 723 of the Code of Civil Procedure as a part of. the proceedings in ah action.

This affidavit we are considering ivas not .covered by that section, but we think the error was. merely clerical in its. nature, and might be disregarded. It would be a hard rule that would deprive the plaintiff of his right to recover- by reason of such a mistake by the notary. - "

The court also permitted the.error in the date of the accident to be corrected by amendment. We are of the opinion that the court had no power to make this amendment^ for the reason that the claim was not a proceeding in the action and so covered by section 723 of the Code of Civil Procedure, and because the city acted upon the claim as it was, and after the action had been commenced no material change could be made in the claim so as to affect the city.

The only question is whether the error was so substantial a one as to prevent a recovery in the case. If it was, then the amendment could not help, the plaintiff. If it was not, then the amendment did no harm and may be disregarded. The mistake in the date was not discovered by either party until the trial was nearly finished. AH alike supposed the true date. of the accident was December tenth. It was finally discovered and conceded it was December eleventh. Did this error deprive the plaintiff of his right to recover in the case ?

It was held in Sullivan v. City of Syracuse (77 Hun, 440) that an error of one day in stating the date of the accident was not fatal to the right to recover under a provision like the one in question here, and we think such a rule a reasonable one. Under the circumstances appearing in this case it would be a great hardship to deprive the plaintiff of his right to recover upon such a slight error, one wholly a mistake, and that could not wéll have' operated to the injury of the defendant.

As to the negligence of the defendant with reference to the ice on the walk the ice did not cover the whole walk. It was a strip on the outer edge four or five feet wide and two inches or so in thickness. There was a clear walk inside of this some fifteen feet wide. The whole width of the walk was nineteen and one-half feet.

In the locality of Oswego municipalities should not be held to the most rigid rule in keeping their sidewalks free from icé and snow in the winter.

We think the jury were not justified in this case in charging the defendant with neglect as to snow and ice on the walk in question at the time of this accident. Their verdict was at least contrary to the evidence.

Upon his own evidence the plaintiff was not very careful in passing over the walk and getting upon the icy part when there was á wide space entirely clear inside, but'it is possible the question of contributory negligence was for the jury.

All concurred ; Hiscock, J., in result only.

■ Judgment and order reversed and new trial ordered* with costs to the appellant to abide event, iipon questions of law and fact.  