
    Johanna Ward, Respondent, v. The City of Troy, Appellant.
    
      Action for personal injuries—filing notices of claim and of intent to sue in Troy — proof that no similar accident had previously happened -,— expert evidence as to the tipping of a-cesspool cover being mechanically impossible.
    
    Under the charter of the city of Troy, which makes the filing of a notice of claim with the comptroller and a notice of intention to sue with the corporation counsel a condition precedent to the maintenance of an action against the city to recover damages for’ personal injuries, a person who began such an action against the city after filing both the required notices, and subsequently' discontinued it, need not again file both the notices before he can commence another action upon the same claim; he is not required to do more than serve upon the corporation counsel á new notice of intention to §ue.
    In an action to recover damages for personal injuries sustained by the plaintiff in consequence of an iron plate, covering'a cesspool entrance located iñ a sidewalk in the defendant city, giving way when the plaintiff stepped upon it, the court considered that, under the peculiar circumstances of the case, it was not error to exclude evidence that no similar accident had ever before happened.
    In such a case a civil engineer should not be allowed to testify that it was “a mechanical impossibility for that cover to' have tipped before it slid or before it was dislodged from its-position'on the rim or the edge of the hole,”.as the jury is quite as competent as the engineer to judge of the mechanical possibilities of the situation.
    Appeal by the defendant, The City of Troy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 16th day of March, 1900, upon the verdict of á jury for $1,000, and also from an order entered in said clerk’s office on' the 11th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    . Upon the 3d day of January, 1897, the plaintiff, in walking along the north side of Harrison street in the defendant city, stepped upon a covering of a cesspool entrance which was upon the highway or sidewalk upon the street. This covering gave way and plaintiff fell in and was injured, and for these injuries she has recovered in this action. The stone is cut down around this hole a little way, leaving a rim or flange on which rests an iron plate. This flange was in places broken, and it is claimed that by reason of this imperfection the iron plate gave way, which caused the plaintiff’s fall. The notice of plaintiff’s claim was presented and left with the comptroller, pursuant to the charter of the city of Troy, and notice of an intention to commence an action was filed with the counsel to the corporation. The filing of these two notices is made by the charter of the city of Troy a condition precedent to the bringing of an action. An action was then commenced for this same injury, which was thereafter discontinued. After said discontinuance and before the bringing of- this action a new notice of an intention to commence an action was filed with the counsel of the corporation, but no new notice of claim was presented to or left with the comptroller.
    Further facts appear in the opinion.
    
      Thomas S. Fagan, for the appellant.
    
      Thomas F. Powers and Charles F. Patterson for the respondent.
   Smith, J.:

The evidence' produced by the plaintiff was, in our judgment, sufficient to authorize the verdict. The question of the preponderance of evidence was properly left to the jury whose province it is to determine the same, and with their determination we find no just cause for interference.

The main contention of appellant’s counsel upon this appeal is that after the discontinuance of the first action plaintiff must file both a new notice of intention to commence an action with the corporation counsel and a new notice of claim with the' comptroller; that having failed to file with the comptroller the second notice of claim after the discontinuance of the first action, she had failed to-do what the law has made a condition precedent to the bringing of her second action. The contention seems to us entirely without merit. It might well be claimed that after the discontinuance of the first action she must file a second notice of the intention- to commence an action with the corporation counsel before the second action was authorized. The object of that notice is to put the municipality upon its guard that the action may be defended and a discontinuance of the first action might well be deemed a rescission of the first notice. This reasoning, however, in no way applies to the notice of claim required to be filed with the comptroller. That notice met the full requirements of the law, and it is difficult to understand how a second notice could aid the defendant or accomplish any other purpose than was accomplished by the filing of the first notice. The charter provision (Laws of 1892, chap. 670, tit.. 10, §19) is that “No civil action shall be'maintained * * *" unless it appears that the claim for which such action was brought. * -x- * wag presented to and left with" the comptroller.” The condition precedent prescribed by the statute has been performed both in letter and in spirit.

Two exceptions to the ruling of the court call for-special notice :: First. The court refused to allow the defendant to show that no-other accident of the kind had happened. There are cases which seem to give importance "to the fact that no other accident had happened similar to the one in suit. Those cases, however, are mostly cases where the negligence claimed is one of construction, and the-construction claimed to be negligent has stood the test of frequent, use without injury. We will not say that this evidence is only competent in cases of defective construction. In the case at bar, however, considering the situation' of this opening, the nature of the-defect claimed and the period of its existence, the fact sought to be proved would have given little assistance to the jury" in reaching-their conclusion.

Second. The court refused to allow a civil engineer, sworn in behalf of the defendant, to testify that it was “ a mechanical impossibility for that cover to have tipped before it slid or before it was- - dislodged from -its position on the rim or the edge of the hole.” The ruling was clearly right. The question was not one for expert-testimony. From the facts as they appear from the evidence, the jury was quite as competent as was this civil engineer to judge of the mechanical possibilities of the situation.

We have examined, the other exceptions called to our attention by the appellant and find no error calling for a reversal of this judgment.

All concurred.

Judgment and order affirmed, with costs.  