
    Mary K. Gregorius, Plaintiff, v. The City of Corning, Defendant.
    Fourth Department,
    November 15, 1910.
    Municipal corporations — injuries on defective highways — statute requiring actual notice — constitutional law — when constructive notice insufficient.
    A provision of a city charter exempting the municipality from liability for injuries caused by defective highways unless actual notice of the defect be given to certain officers is constitutional.
    Under such provision actual notice must be given to the designated officers; constructive notice is insufficient.
    Thus, where the charter required actual notice of the defective condition of highways to be given to the mayor or to the city clerk, there can be no recovery against the city, in the absence of actual notice to those officers, because the sidewalk inspector authorized to repair defects and a member of the board of public works knew of the defect, if in fact they did not impart that knowledge to the mayor or city clerk.
    Kruse and Williams, JJ., dissented, with memorandum.
    
      Motion by the plaintiff, Mary K. Gregorius, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court on the opening at the Steuben Trial Term in May, 1910.
    
      Frank J. Saxton, for the plaintiff.
    
      James O. Sebring, for the defendant.
   Robson, J.:

Plaintiff seeks to recover of defendant damages for personal injuries due to a fall upon a defective walk in the city of Corning.

Defendant’s charter provides that “ The city shall not be liable for any injury caused by such highways, streets, alleys, sidewalks or crosswalks \i. e., the highways, streets, alleys, sidewalks and crosswalks of the city] being out of repair, or dangerous from snow, ice or unlawful obstructions, unless actual notice of the unsafe and dangerous condition thereof has been given to the mayor or the city clerk of said city a reasonable time before the happening of such injury.” (Laws of 1905, chap. 142, § 30.) Plaintiff’s complaint was dismissed by the trial court on the ground that it appeared from plaintiff’s opening that actual notice of the defective condition of the walk on which plaintiff fell and was injured had not been given either to the mayor or the city clerk as required by the statute above quoted.

The constitutionality of this provision of the statute must be conceded, and however harsh or unjust it may seem to be in its opera- ' tion, correction must be sought elsewhere than in the courts. (MacMullen v. City of Middletown, 187 N. Y. 37.)

Plaintiff’s claim that actual notice of the defective condition of the walk in question was given to the mayor of the city within the fair meaning of the statute is based solely upon the fact that a sidewalk inspector and one member of defendant’s board of public works did in fact know of the defective condition of the walk some considerable time before the accident; and that, as the sidewalk inspector was authorized, and it was his duty, to go ahead and repair the walk without referring the matter to the board of public works, and as the mayor was a member of the board of public works, which ' board had charge of the streets aiid alleys of the city and power to repair defective walks therein, it followed that actual notice had been given to the mayor and the requirement of the statute had thus been met. The mayor is a member and ex officio the president of the board of public works, but has no vote therein. (Charter, § 119.) It is not claimed that either of the two officers of defendant who had actual knowledge of the condition of this walk did in fact impart that knowledge to the mayor. Nor is it claimed that it was the duty or custom of those officers to call the attention of the mayor to such facts coming to their attention, nor that either of them was delegated by the mayor to receive or act for him in receiving such notice. Actual notice to the mayor of the condition of this walk imports that he had information, intelligence or knowledge of it. (McNally v. City of Cohoes, 127 N. Y. 350, 353.) This is what the statute requires should in some way be given either to the mayor or the' city clerk. This information, intelligence or knowledge may be given in any way so that it be actually, that is in fact, as distinguished from constructively, given. (MacMullen v. City of Middletown, supra ; McManus v. City of Watertown, 88 App. Div. 361.) The facts upon which plaintiff relies, while perhaps sufficient to show constructive notice, fall far short of proving the actual notice required by the statute, and plaintiff’s cause of action fails for that reason. Plaintiff’s counsel seems to rely largely on the cases of Sprague v. City of Rochester (159 N. Y. 20) and Elias v. City of Rochester (49 App. Div. 597; affd., 169 N. Y. 614). Neither of these cases seems to be an authority in support of his position. In each case it was held that the evidence was sufficient to warrant a finding that notice was in fact given to or received by an officer or authority, to whom such notice could be given under the terms of the statute there in question.

Plaintiff’s exceptions should be overruled, motion for new trial denied'and judgment directed for defendant, with costs.

All concurred, except Williams and Kruse, JJ., who dissented in a memorandum by Kruse, J.

Kruse, J. (dissenting):

I think the complaint should not have been dismissed. It states a good cause of action. It is not necessary to show by direct evidence that notice of the defect had been given to the mayor or clerk.' That fact may be established indirectly, by circumstances.

The duty of maintaining streets and sidewalks in the defendant. city is upon the commissioners of public works, of which the mayor is chairman. (See Laws of 1905, chap. 142, §§ 119, 124.) If a person employed by the commissioners and one of the commissioners himself had notice of the defect, as is claimed by the plaintiff, that fact, with the surrounding circumstances, in the absence of any proof to the contrary is sufficient, as I think, to show that the mayor had actual notice of the defect. Such an inference is entirely reasonable.

A motion to dismiss the complaint upon the opening practically challenges the sufficiency of the complaint (Hoffman House v. Foote, 172 N. Y. 348); and counsel’s opening should be considered in connection with the allegations of the complaint.

Furthermore, the object of requiring notice to the mayor or clerk is, that the officers whose duty it is to maintain the streets and sidewalks are apprised of the defect, to the end that the officers may make them safe. That duty is imposed by the defendant’s charter upon the commissioners of public works, as has been stated ; not upon the mayor or clerk. If the commissioners had actual notice of the defect in question, as is claimed, nothing further wuuld be accomplished by giving notice to the mayor or clerk. It seems to me that under such circumstances, it was not necessary to give notice to the mayor or clerk to make the city liable for the failure of its- officers to perform a duty which the statute imposes upon the city.

I vote for reversal.

Williams, J., concurred.

Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant, with costs.  