
    MacMULLEN v. CITY OF MIDDLETOWN.
    (Supreme Court, Special Term, Orange County.
    February 23, 1905.)
    Defective Sidewalks—Injury to Pedestrian—Notice to City of Defect.
    The requirement of a city charter that to recover for personal injuries . from neglect of the city to keep its sidewalks in a reasonably safe condition, it must be shown that a written notice of the dangerous condition Was given the city council, is unconstitutional, as taking away the right of action altogether, and in that way destroying a property right. It is enough that the city had actual notice of the condition.
    [Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 235.]
    Action by Charles MacMullen against the city of Middletown. Defendant demurs to the complaint. Demurrer overruled.
    E. N. Oakes, Thomas Watts, and William Vanamee, for plaintiff.
    Russell Wiggins, for defendant.
   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 constructiye, 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 altogether, and in that way destroy a property right. It may be held that it was in power of 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.  