
    Harrigan v. City of Brooklyn.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Municipal Corporations—Actions against—Notice op Claim.
    Laws N. Y. 1888, c. 583, tit. 22, g 30, provides that no action or special proceeding shall be begun against the city of Brooklyn unless “the claim or claims” upon which the action, etc., is founded shall be alleged to have been verified and presented to the comptroller 30 days before-bringing suit; also, that the comptroller may require any person presenting for settlement “an account or claim” against the city to be examined in regard to it, etc. Held, that this statute applies only to causes of action ex contractu. Barnard, P. J., dissenting.
    Appeal from special term, Kings county.
    Action by William Harrigan against the city of Brooklyn for damages for personal injuries, alleged to have been caused by defendant’s negligence. Defendant demurred on the ground that there was no allegation in the complaint that plaintiff had presented his claim to the city comptroller, as required by Laws 1888. c. 583. The demurrer was overruled, and defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, J.J.
    
      Almei E. Jenks, for appellant. James C. Church, for respondent.
   Pratt, J.

This contention involves the construction of section 30, tit. 22, c. 583, Laws 1888. There has been a similar provision in the charter of Brooklyn for many years, and it has been invariably held that the word “claim” referred to some account or money demand or contract, and not to claims arising out of torts, for the reason that the comptroller had no power to compromise or pay such claims, and hence an idle ceremony to present such claims to that officer. The words of the statute are sufficiently broad to cover the case here presented, but seem to be qualified by the latter part of said section, where the words “account or claim” against the city are used synonymously ; and this, together with the context, seems to imply that the statute was intended for a case where the claim arises out of contract, and one where some useful purpose could be served by serving the same upon the comp: troller. The case of Quinlan v. City of Utica, 11 Hun, 217, and affirmed by court of appeals, 74 N. Y. 603, is directly in point upon this question. The case of Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792, is not conclusive the other way upon this point, as it is upon a widely different statute, to-wit, the charter of the city of Buffalo. It is plain that the case of Gage v. Village of Hornellsville, 106 N. Y. 667, 12 N. E. Rep. 817, upon a careful reading, is not in conflict with the Reining Case, as in the former case-it was held that section 3245, Code, is to be construed as a re-enactment of section 2, c. 262, Laws 1859, etc. See, also, McClure v. Supervisors, 3 Abb. Dec. 83; Howell v. City of Buffalo, 15 N. Y. 512; McGaffin v. City of Cohoes, 74 N. Y. 387. This word “claims or account” as used in the charter of Brooklyn, has always been held by the local judges not to include a claim arising out of torts. It was recently so held by Mr. Justice Cullen; also by city court, opinion by Chief Justice Clement, in the case of Cavan v. City of Brooklyn, 2 N. Y. S. 21, where all the authorities are examined with great care. I am aware there are authorities that seem to hold a different doctrine, such as Duryea v. Mayor, 26 Hun, 124, and Reed v. Mayor, 31 Hun, 312. In the latter case the word “claim” was held to mean all kinds of claims, including one for personal injuries; but both of these cases arose under the consolidation act of the city of Hew York, and under that act the comptroller has certain discretionary powers in such niatters not conferred on the comptroller of Brooklyn. , A reason for such a rulé exists in Hew York city which does not exist in Brooklyn. This construction has been uniformly held for a number of years, and the last part of the section (30) seems to imply that such is a proper construction. Judgment affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J.,

(dissenting.) The decisions are apparently conflicting, but I think the demurrer good. The section of the charter of the defendant is in these words: “Ho action or special proceeding shall be prosecuted or maintained against the city of Brooklyn, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the claim or claims upon which said action or special proceeding is founded were presented in detail, and duly verified by such claimant or claimants, to the comptroller of said city for adjustment, and that he has neglected or refused to make any adjustment or payment thereof for thirty days after said presentment. The comptroller may require any person presenting for settlement an account or claim against the city of Brooklyn to be sworn before him, touching such account or claim, and, after being so sworn, to answer orally as to any facts relative to the justness of such account or claim. Willful false swearing before him is perjury, and punishable as such.” Chapter 583, tit. 22, § 30, p. 1109, Laws 1888. In the absence of authority, the case should be deemed' plain. The most comprehensive words known to the law are “claims” and “demands.” These words would make the most comprehensive expression known. One term includes the other, and without any doubt would include claims for negligence as well as claims for breach of contract. That the statute should include actions for negligence is apparent. The city should know when, where, and from what cause the injury happened, and the extent and nature of the injuries. These facts are generally in whole or in great, part within the sole knowledge of the plaintiff or claimant. The inquiry authorized by the comptroller would be of the utmost importance to the defendant in determining the validity of the claim. That the comptroller had not the power of audit of a claim for injury resulting from negligence of the city is not important. Baine v. City of Rochester, 85 N. Y. 523. A class of cases arose under chapter 262, Laws 1859. This law provided that no costs should be received “unless the claim upon which judgment” was founded shall have been presented for payment to the chief fiscal officer of municipal corporation. The court of appeals held that this law did not include claims for torts. Howell v. City of Buffalo, 15 N. Y. 512; McGaffin v. City of Cohoes, 74 N. Y. 387. Howell v. City of Buffalo was decided upon the charter of the city of Buffalo, and holding that under its peculiar wording it was not intended to include torts. The decision was made before the act of 1859 was passed. McGaffin v. City of Cohoes decided merely that these words in the city charter: “Bo action against the city on a contract, obligation, or liability, expressed or implied, shall be commenced except within one year after the cause of action shall have accrued, ”■—did bar a claim for a tort; that the words were limited to contract obligations. The court of appeals decided that the law of 1859 did not include claims for negligence. Taylor v. City of Cohoes, 105 N. Y. 54, 11 N. E. Rep. 282. The same court held that section 3245 of the Code, which is substantially the same as the law of 1859, did not include torts. Gage v. Village of Hornellsville, 106 N. Y. 667, 12 N. E. Rep. 817. Words similar to those in question have been held to include contracts and torts. In Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792, the words were: “Bo 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.” It was held that these words included torts. The charter in fact, however, did clearly intend that the claim for torts should be presented. The case of Reed v. Mayor, 97 N. Y 620, decided that when a claim for damages was presented under somewhat similar words to those in the Brooklyn charter, it did not bind the claimant to the amount of his claim as presented, and was not so essential but that the court might amend the pleadings so as to enlarge the claim. The words of the Brooklyn charter seemed to be more comprehensive than were presented in the cases on which adjudications have been made. The word “claims” is carried unrestricted through the sections, and there is nothing to lead to a restriction of its meaning. Bo action can be maintained unless the details of the claim upon which it is founded are presented to the comptroller in detail, and verified for adjustment, and the adjustment or payment thereof neglected or refused for 30 days after the presentation. This statute requires a presentation of a claim for injuries resulting from negligence, and it requires that it be stated in the complaint. The complaint fails in this respect, and the demurrer should therefore be sustained. Judgment of special term should be reversed and demurrer sustained, with leave to plaintiff to amend in 20 days on payment of costs. 
      
       Not reported.
     