
    Jones v. City of Albany.
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1891.)
    1. Municipal Corporations—Presentation of Claims.
    The provision of the charter of the city of Albany that no action shall be brought against the city until the claim shall have been presented to the common council, and a reasonable time thereafter shall have elapsed, applies as well to claims for personal injuries as to other claims, in view of its reference to other provisions of the charter that all claims against the city for personal injuries must be submitted to the council in writing, and that the law department shall consider such claim, and report thereon to the council within three months from the date of reference.
    
      2. Same—Time to Investigate Claim.
    The presentation of such claim to the council, and an opportunity to investigate the same, are conditions precedent to the right to maintain an action thereon; and such an action, brought within the three months, without allegations or proof to show lack of diligence in the law department, or any matter affording ground for curtailing the statutory period, cannot be sustained.
    Appeal from circuit court, Albany county.
    Action by Emma Jones against the city of Albany. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before Learned, P. J., and Mayham and Kellogg, JJ.
    
      Herrick c& Delahanty, (D. Cady Herrick, of counsel,) for appellant. Henry T. Sanford, (Hugh Reilly, of counsel,) for respondent.
   Kellogg, J.

The plaintiff brings her action for damages for personal injuries sustained through the negligence of defendant. The negligence alleged is the failure to repair a defective sidewalk within the city limits. The questions of negligence and damages were submitted to the jury, and a verdict was rendered in favor of plaintiff for $3,500. A.t the opening of plaintiff’s case, the defendant moved to dismiss the complaint generally, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and specifically, upon the grounds that it did not allege a compliance with certain provisions of the city charter touching the presentation of plaintiff’s claim to the common council, and lapse of statutory or reasonable time for its consideration before action brought; also, a failure to allege notice to or knowledge in defendant of the defect in the sidewalk. The motion to dismiss was denied. Defendant moved for a nonsuit at the close of plaintiff’s case, again bringing up the questions as to compliance with the provisions of the city charter stated. At the close of the case, the defendant renewed the motion for nonsuit on the same grounds, and the motion was again denied. The questions involved in this appeal are the questions raised by these motions.

The charter of the city of Albany provides: “All claims against the city for damages or injuries to the person, claimed to have been caused or sustained by defects, want of repair, or obstructions from snow or ice, or other cause, in the highways, streets, sidewalks, or cross-walks of the city, or caused by the negligence of the city as to the highways, streets, sidewalks, or cross-walks of the city, shall be presented to the common council in writing within three months after said injury is received. Such writing shall describe the time, place, cause, and extent of the injury, so far as then practicable, verified by the oath of the claimant. The omission to present such claim, as aforesaid, within three months, shall be a bar to any claim or action therefor against the city. And the law department shall consider said claim, and report thereon to the common council within three months from the date of the reference of such claim; but no such claim shall be settled or paid except as prescribed in section 10 of title 5 of this act.” Section 10 of title 5, above referred to, in substance provides that the corporation counsel may, with the approval of the “mayor and board of finance,” compromise and settle claims against the city. Another section provides: “No action or suit shall be brought or maintained until the claim shall have been presented, and a reasonable time shall have elapsed within which such claim might have been passed upon by the common council or chamberlain, as herein provided for.” We are of opinion that the restrictive clause is applicable to claims for personal injuries, as well as to other claims presented against the city. If it were not so, there seems to be nothing to prevent suit on such claims immediately upon the happening of the injury, and before any claim is presented to the common council; The provision that such claim shall be presented, with due particularity as to “time, place, cause, and extent of injury,” within three months, or action thereon shall be barred, might be complied with as well after suit brought as before; indeed, the service of a verified complaint, containing the particulars required, upon the common council, might well be determined to be a substantial compliance with this provision. To give any utility or beneficial effect to these provisions of the charter, a construction must be given to bear out the plain purpose of the enactment. We are of opinion that these provisions clearly contemplate an opportunity on the part of the city to investigate the merits of the claim for personal injuries before any action can be brought, and opportunity to negotiate a compromise or settlement, to save cost and expenses to the tax-payers; that the first step must be taken by the claimant, and, within- three months of the date of the injury received, the claimant must present to the common council in writing a verified statement setting forth the time, place, cause, and extent of the injury. The common council must then refer such claim for investigation to the law department, and the law department must within three months thereafter investigate and report back to the common council for further action the results of their inquiry. The ' common council is held in suspense, so far as relates to the claim, until such report is made, and the right to bring action in the courts is also held in abeyance until such report can with reasonable diligence be made, but not beyond the three months given by statute to the law department for investigation. Any other construction, it seems to us, would defeat the manifest object of the provisions, viz., opportunity to investigate, and opportunity to compromise or settle. It seems to us it can rarely, if ever, be determined as a matter of law—and certainly not .upon the evidence in this case—that the full three months given to the law department by the statute was more time than was needed, and was not “a reasonable time.” Unless there is some allegation in the complaint of lack of diligence on the part of the law department, and some proof to sustain such allegation, the legal inference must remain that this department has discharged its full duty if it reports within the time limited by statute.

The claim of the plaintiff was presented by plaintiff to the common council on January 24th; it was referred to the law department on February 3d ; the action was commenced March 18th, and before any report had been made by the law department; and the learned justice at the trial held, as a matter of law, that this afforded “reasonable time” for investigation, as contemplated by the provisions of the charter referred to. In this we think the court erred. If it were permissible—which we seriously doubt—to make proof that the law department, which is given three months, by statute, in which to investigate, was not diligent, and might have made an earlier report upon a claim for so large a sum, still there was in fact no proof offered showing, or tending to show, lack of diligence in the law department, or affording any ground for curtailing the statutory time of three months to less than two months. For the reason stated we are of opinion that the motions for nonsuit should have been granted. The conditions to which we have alluded—to-wit, the presentation of the claim to the common council, and the opportunity for three months to investigate the merits of the claim, and to compromise or settle— are precedent conditions to any standing in court, and the performance of these should be in the complaint alleged, excused, or failure charged to defendant’s neglect;' and it becomes a part of plaintiff’s duty to establish by proof such allegations. Nothing of this appears either in the plaintiff’s complaint in this action, or in the evidence on the trial; hence the request of plaintiff on this appeal to so amend the complaint to conform to the proof would, if granted, avail her nothing. Judgment reversed; new trial granted; costs to abide event. All concur.  