
    Virginia M. Kelly, Plaintiff, v. The Mayor, Etc., of the City of New York, Defendant.
    (Supreme Court, New York Special Term,
    January, 1897.)
    Municipal corporations — Negligence — Notice of intention to sue.
    A cause of action for personal injuries caused by the fall of a tree because of its rottenness and decay is one for negligence, although the tree is also claimed to have been a nuisance, and comes within the terms of chapter 572, Laws 1886, requiring notice of intention to sue to be filed with the corporation counsel, and an action thereon cannot be maintained unless such notice has been filed, although the notice of claim provided for by the Consolidation Act has been given.
    Demurrer to complaint for insufficiency.
    
      .. William D. Tyndall (Cornelius E. Collins, of counsel)., .for plaintiff. . •
    Eraricis M. Scott, corporation counsel (William H. Rand, Jr., of counsel), for defendant.
   Russell, J.

The determination, of the demurrer to the complaint for insufficiency depends upon the solution of the question as to whether the cause of action stated in the-complaint is one embraced within chapter 572, Laws of 1886, which requires actions against cities having 50,000 inhabitants or over, for damages for personal injuries, arising from its alleged negligence, to ■be commenced within one year after the cause of action- accrued, and notice of the intention to commence' such action, and of the time and place at which the injuries were received, to be filed with the counsel to the corporation within -six months after such cause of action shall have accrued.

The plaintiff complied with sections' 123 and 1104 of the Mew York City Consolidation Act as to the presentment of the account or claim and the commencement of the action after thirty days therefrom, but did not comply with the general act requiring the filing of the notice of intention to sue.

If the cause of action comes within the terms of the -general act in, regard to cities of over' 50,000 inhabitants, the-filing of the notice of claim provided-for-by the Consolidation Act does not serve as a substitute, and the action cannot be maintained if it be one of those embraced' within the terms of the general act. Curry v. City of Buffalo, 135 N. Y. 366; Babcock v. Mayor, 56 Hun, 196; Dawson v. City of Troy, 49 id. 322.

The cause of action set forth in the complaint is for personal injuries received by the plaintiff from the fall of a tree in one . of the streets of the city of Mew York, which it was the duty of the city to keep in a safé condition, and the fall was occasioned by the rotténness and decay and injured condition of the tree. It is averred in' the complaint that: “ The defendant negligently 'and carelessly disregarded its said duties in-relation to the public and the said tree and failed to care for and inspect the said tree and protect the public, ánd suffered the tree to remain in said highway, although it had notice and- knew, ánd, was bound to know, that the said tree endangered, menaced and imperiled the passers-by and was a nuisance to the public by reason of its infirm, rotten, injured and' otherwise unsafe and unstable condition.” It is also alleged that by reason of such rottenness, etc., “ and defendant’s negligence, as aforesaid,” the injury was occasioned to the plaintiff for which she seeks recovery. .

The plaintiff’s counsel argues that the facts averred in the complaint, and the allegation that the tree became a nuisance to the public, render this an action for damages by reason of a nuisance instead of one for personal injuries sustained by negligence of the defendant.

It is sometimes difficult to distinguish the exact difference between a nuisance and a situation produced by negligence. Generally speaking, a nuisance is occasioned by some affirmative act and not by mere sufferance, but yet passive action, where an active duty is imposed, may -result in creating what is known as a nuisance. An obstruction in the streets or highways, or the generation of a miasmatic atmosphere, may be produced by non-action on the part of those whose duty it is to remove the cause of such production and might be well considered, to be a nuisance to the public.

But, in my view of the purposes of the statute and its effect, that statute was not designed to give a name to the causes of action, but rather classifies the substance of the actions intended to be embraced within its provisions. The city acts through its subordinate servants in the discharge of its public duties, and, in the numberless ramifications of the acts of its various servants in the discharge of those duties, requires notice promptly given of any negligent action by which pecuniary claims for personal injuries may be made. It has also been deemed advisable by the legislature to require, in addition to the notice of the time and place at which the injuries were received, that notice of determination to sue should also be given.

Under the scope of the-complaint it is very evident that if the tree became by sufferance a nuisance, dangerous to the safety of the public, such condition resulted from the negligent nonaction' on the part of those subordinates of the city whose duty it was to see that the tree was properly guarded or removed. To reach. the result of the responsibility of the city for the injuries received - by the plaintiff the line of proof must demonstrate the negligence of the city. The ultimate negligence of the city’s servants may have produced a nuisance, but no recovery could be had without such result having been occasioned by such negligence. If, just before the injury to the plaintiff, a storm had occasioned the insecurity of the tree without time sufficient to throw the burden of notice upon the city having elapsed, it would hardly be claimed that the city would have been liable for the injury. It is only by actual notice, or 'by constructive notice, with a lapse of time sufficient to enable the city to repair, that the liability of the city would begin. Therefore, it is very evident that in this case the plaintiff can only recover by proof of negligent nonaction on the part of the servants of the city, and such requirement demonstrates without doubt that this action is brought to recover for the personal injuries sustained by reason of the negligence of the city or its employees.

The demurrer is, therefore, sustained, with.costs. No request has been made for leave to serve an. amended complaint, and that question is not passed upon by this court.

Demurrer sustained, with costs.  