
    Margaret Eagan, Resp't, v. The City of Rochester, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    Municipal corporations—Negligence—Costs—Statutes.
    The amendment to § 80, of the charter of Rochester, by chapter 561. Laws 1890, was intended to supersede and take the place of § 218, as amended by chapter 843, Laws 1881, and, hence, a party bringing action against the city for injuries sustained by its negligence is not required to serve the fifteen days’ notice in order to be entitled to costs.
    Appeal from an order of the Monroe special term, directing the clerk ef the county of Monroe to allow the plaintiff’s bill of costs and disbursements.
    
      C. D. Kiehel, for app'lt; D. C. Feely, for resp't.
   Lewis, J.

The plaintiff, on the 6th day of February, 1888, sustained injuries by falling upon the sidewalk in the city of Rochester. She brought an action against the city to recover damages and obtained a verdict of three hundred ($300) dollars.

By chapter 14 of the Laws of 1880, a charter was created for the city of Rochester, and by § 218 it was provided that the owners of lots in the city shall keep the sidewalks in front of their premises in repair and free from obstruction, and that the city shall not be liable for damages caused by defective sidewalks, unless actual notice of its unsafe and dangerous condition be given to the officers of the city having charge of the streets a reasonable time before the happening of any injury.

By chapter 343 of the Laws of 1881 this section was amended by adding thereto the following: “ Any person or persons who shall claim damages against said city for injuries caused by any alleged negligence shall not be allowed to tax costs against said city in any action brought therefor, unless the parties, so claiming damage, shall have, within fifteen days after the happening of such injury, notified the mayor or city attorney of the time and location of the place where such injury occurred.” Section 80 of the charter of 1880 provided for auditing accounts against the city. By chapter 561 of the Laws of 1890, this section was amended by providing for the form and manner of presenting unliquidated claims against the city for wrongs, injuries or negligence. And the following provisions were added thereto: “ No action or proceeding to recover or enforce any claim, debt or demand against the city shall be brought until the expiration of forty days after the claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid.” * * *

“ All actions brought against the city to recover damages or other relief for injuries to person or property, caused by negligence shall be commenced within one year from the time of receiving the injuries or when the cause of action mentioned in the complaint shall have accrued. No action or proceeding shall be maintained against the city for personal injuries, unless the notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

These provisions in reference to the time within which an action shall be commenced and the filing with the law officer of the notice, were substantially a reenactment and incorporation into the city’s charter of the provisions of chapter 57.2 of the Laws of 1886.

The plaintiff failed to give the fifteen days notice required by the act of 1886, and she commenced her action in the month of June, 1888. The action was tried in the year 1891, and resulted in a verdict against the city for $300. The county clerk refused to tax plaintiff’s bill of costs for the reason the fifteen days notice was not given.

The object of the enactment requiring the service of fifteen days notice was, that the city should have early information of the happening of the accident, so that its layr officers could make an early investigation of the facts and determine whether the city was liable and learn who were witnesses of the occurrence, and for the further object of fixing the ultimate responsiblity for such negligence upon the proper person. The original section did not provide for the giving of any notice that the claimant intended to bring an action against the city. It simply provided that if an action was brought without giving the notice, the plaintiff, if successful, should not be entitled to costs.

The provisions of this amended section were more comprehensive, the service of the notice' was made a condition of the right to maintain an action. Theumendment of 1890 did not in terms repeal § 218 of the act of 1881. The time within which the notice was required to be served was extended to six months, and it thereby corrected the somewhat harsh provision in the former law requiring the notice to be served within so short a time after the accident. The provision requiring the fifteen days notice was an unreasonably short time, asjs exemplified by the facts of this case. It was made to appear upon the motion that the plaintiff’s injuries were of so serious a character as to make it practically impossible for her to attend personally to the preparation and service of the notice within fifteen days of the time of the accident.

We would not be justified in declaring the law void for that reason, the statute not requiring that the plaintiff should personally serve the notice. It was held in Wheeler v. Conn. Mutual Life Ins. Co., 82 N. Y., 543, that the insanity of the assured was not an excuse for the nonpayment of the premiums, as the payment could have been made as well by any other person. The injustice of the provision, however, may be considered in judging of the legislative intention in enacting the amendment of 1890.

As we have seen, the statute as amended covered the entire ground of the section amended, and it is hardly supposable that the legislature intended to allow the former act to remain in force, thereby requiring the service of two notices of the circumstances of the injury upon the same official, one within fifteen days and the other within six months. If both sections are in force the anomalous condition exists that an action may be maintained if the notice contemplated by the act of 1886 is served within six months, and yet the plaintiff is not entitled to recover costs, which are simply an incident to the action, unless the fifteen days notice has also been served.

The repeal of statutes by implication is not favored, but where two statutes are found relating to the same subject and are enacted for the same purpose, the former must be deemed to have been repealed.

The later law prevails as the last expression of the legislative will. Sec. 138, Sutherland on Statutory Construction.

“ A subsequent statute revising. the whole subject matter of the former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must on principles of law, as well as in reason and in common sense, operate to repeal the former.”

“ Though a subsequent statute is not repugnant in all its provisions to a former one, yet if it be clearly intended to prescribe the only rule which should govern, it repeals the former statute.” * * * “ The reasonable inference from a revision is that the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time, the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.” Section 154, id.

The foregoing are quotations from the text of Sutherland on Statutory Construction, the doctrine is sustained by a "number of authorities referred to in the marginal notes.

We are of the opinion that the amendment of 1890 was intended to supersede and take the place of the section of the act of 1881 mentioned, and that the plaintiff was not required to serve the fifteen days notice in order to be entitled to costs.

This leads to an affirmance of the order appealed from, which should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Macojlbek and Haight, JJ., concur.  