
    John Reinig and others, appellants, v. City of Buffalo, impleaded, etc., respondent.
    
      (Court of Appeals,
    
    
      Filed April 27, 1886.)
    
    Suet alo (city of)—Action against—Complaint must allege that claim HAD BEEN PRESENTED TO COMMON COUNCIL—NON-COMPLIANCE "WITH THIS REQUIREMENT CAN BE RAISED BY DEMURRER.
    A clause in the charter of the city of Buffalo reads as follows: “No z action to recover or enforce any claim against the city shall be brought until the expiration of forty clays after the claim shall have been presented to the common council in the manner and form provided.” Held, that this was a condition precedent to the commencement of an action, and must be alleged in the complaint. A non-compliance with this requirement can be raised by demurrer.
    
      Appeal from judgment of general term of superior court of Buffalo, sustaining the demurrer interposed by the defendant.
    
      David F. Day, for appellants, John Reinig and others.
    
      W. F. Worthington, for respondent, City of Buffalo, impleaded, etc.
   Ruger, C. J.

The sole question presented by this appeal is whether the complaint, in an action against the city of Buffalo, should contain an allegation of the previous presentation of the claim declared on to its common council, and that forty days had expired since such presentation. The clause of the city charter requiring such a proceeding reads as follows: “No action to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council in the manner and form provided.” Section 7, title 3, chapter 519, Laws 1870. The inquiry is whether this provision was intended to operate as a condition precedent to the commencement of an action, or simply to furnish a defense to the city in case of an omission to make such demand. We think the plain language of the statute excludes any doubt on the subject. It absolutely forbids' the prosecution of any action until the proper demand has been made. It attaches to all actions whatsoever, and by force of the statute becomes an essential part of the cause of action, to be alleged and proved as any other material fact. It does not purport to give the city a defense dependent upon an election to use it, but expressly forbids the institution of any suit until the preliminary requirements have been complied with. The plain intent of the requirement was to protect the city from the costs, trouble, and annoyance of legal proceedings, unless, after a full and fair opportunity to investigate and pay the claim, if deemed best, they declined to do so.

It is not, in such a case, necessary that the thing required should constitute one of the elements of a common-law action; for, if the legislature have made even a step in their remedy a condition of its prosecution, it is essential, not only that it should be taken, but that it should be affirmatively alleged and proved by the plaintiff. It is competent for them to attach a condition to the maintenance of a com- . mon-law action, as well as one created by statute; and when they have done so, its averment and proof cannot safely be omitted. The court, in Nagel v. City of Buffalo (34 Hun, 1), in considering the statute in question, seemed to think its requirement was in the nature of a condition subsequent or proviso, having no necessary connection with the proper statement of a cause of action; but we think they erred in their conception of the nature of the provision. Neither its language nor its object is analogous to those provisions authorizing the defense of the statute of limitations, or other special or particular defenses constituting conditions subsequent which may or may not occur in particular cases, and must therefore be averred to authorize the court to take cognizance of them. Here the requirement exists independent of proof in every case, and is made to precede the institution of any suit whatever. Its performance cannot for any purpose be presumed, but must, to be availed of, be alleged and proved. The language is “that no action shall be brought” until, etc., and constitutes an express prohibition against the action until performance of the condition. A non-compliance with this requirement can be raised by the defendant at any stage of the action when it is called upon to act in the case.

The general rules of pleading applying to such cases are elementary, and hardly need citations to illustrate them.

It was said by Judge Denio, in Howland v. Edmonds (24 N. Y., 307):

“If the defendant’s liability depends upon the performance of a condition precedent, it is very pl:.in ihat no action will lie until it be performed, and a request or demand of the thing claimed may, and frequently does, constitute such a condition to the obligation of the defendant. When that is the case, such demand before suit brought must be'averred and proved to enable the plaintiff to maintain the action.”

The rule is also illustrated by the decision in Graham v. Scripture (26 How. Pr., 501), where, in an action upon a judgment which was prohibited by statute except upon leave of the court first had, it was held that the allegation of such leave must be averred and proved by the plaintiff. It was held in Taylor v. Mayor, etc. (83 N. Y., 625), that a similar provision in the charter of New York constituted a condition to the maintenance of an action against the city; although in that case it was also held that it did not in terms apply to the use of a claim by way of set-off or recoupment in an action brought bxr fhe city against the claimant. The case of Porter v. Kingsbury is analogous to the case in hand. There suit was brought upon an undertaking on appeal, which the statute directs shall “not be maintained ” until ten days after service of notice of the entry of judgment of affirmance upon the appellant. It was held that performance of the requirement was a condition precedent, and must be alleged in the complaint. Section 1309, Code Civil Proc.; Porter v. Kingsbury, 5 Hun, 597; S. C., affirmed, 71 N. Y., 588. There the act required to be performed constituted no part of the cause of action, but was provided, as in this case, to shield the parties liable, from cost and trouble in case of their willingness to pay the claim without suit after notice given.

It is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law, the complaint must, by the settled rules of pleading, skate every fact essential to the cause of action, as well as those necessary to give the court jurisdiction to entertain the particular proceeding.

The dicta in Minick v. Troy (83 N. Y., 516), with reference to a similar requirement that it was necessary for the plaintiff to “ show, in the first instance, that the claim for which the action was brought, was presented to the comptroller,” accords with our present views, and is further supported by the case of Fisher v. Mayor, etc. (67 N. Y., 73), where the liability arose under the statute authorizing the city to acquire lands by right of eminent domain. The act there provided for compensation by the city, and authorized suit to be brought therefor upon an award, and “ after application first made to the mayor,” etc., “ for payment.” It was held that this requirement constituted a condition precedent to the maintenance of an action. The liability to pay in that case existed by force of the constitution, and the statute only regulated the method by which the amount was to be determined, and the mode of enforcing payment thereof. The case does not, in principle, seem to be distinguishable from that under discussion.

We are also referred to a number of decisions in the courts of our sister states upon statutes quite similar to that of the Buffalo charter, in which the want of an allegation of presentation and demand has been held demurrable. Jones v. Minneapolis, 31 Minn., 230;Benware v. PineValley, 53 Wis. 527; Maddox v. Randolph Co., 65 Ga., 216; Marshall Co. v. Jackson Co., 36 Ala., 613. We agree with the conclusions reached in those cases.

The judgment appealed from should be affirmed.

All concur.  