
    Michael E. Higgins, Respondent, v. The City of Albany, Appellant.
    Third Department,
    January 6, 1909.
    Municipal corporations — negligence —notice to cities of second class.
    As a condition precedent to a suit against a city of the second class to recover for personal injuries, the plaintiff must serve not only the notice of the injury and of the defect for which the city is claimed to be liable, as required by section 461 of chapter 182 of the Laws of 1898, as amended by chapter 504 of the Laws of 1904, hut also within six months after the cause of action has accrued, must file with the corporation counsel a notice of intention to commence action as required by chapter 572 of the Laws of 1886.
    
      The service of a notice upon the common council complying with the Laws of 1898, but containing no notice of an intention to sue, is not equivalent to the notice to the corporation counsel required by the Laws of 1886, and' when there has been no timely service of the latter notice there can be no recovery.
    Chester and Kellogg, JJ., dissented.
    Appeal by the defendant, The City of Albany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of October, 1908, upon the report of a referee.
    
      Arthur L. Andrews [Andrew J. Nellis of counsel], for the appellant.
    
      John A. Delehanty, for the respondent.
   Smith, P. J.:

This action was brought to recover damages for an injury which plaintiff sustained on the 5th of July, 1905, upon South Pearl street in the city of Albany., The defendant offered no evidence, relying upon the failure" of the plaintiff to prove the service of the notices required by the statute as conditions precedent to his right to recover. Hpon the 2d day of October, 1905, the plaintiff served upon the common council of the city of Albany a petition giving notice of his injury and the maimer in which it was received and the extent of the same. The prayer of the petition was as follows: “ Your petitioner, therefore, pursuant to the provisions of section 461 of chapter 182 of the Laws of the State of Hew York, passed March 31, 1898, and enti: tléd. An Act for the Government of Cities of the Second Class ’ hereby respectfully presents to the Common Council of the City of Albany his claim for * * * $10,000' damages for injuries to-his person caused by the negligence of the City of Albany, its officers, employees and agents.” There was no further notice served until January 27, .1906, when there was served upon the corporation counsel a notice of intention to sue, which notice was returned by the corporation counsel as having been served too late.

There are two statutes which seem to require the service of notice upon the city as conditions precedent to the right to sue. The first is section 461 of chapter' 182 of the Laws of 1898, as amended by chapter 504 of the Laws of 1904, which requires the service of a notice of the injury and a notice of'the defect for which the city is claimed to'be liable. The notice served upon October second seems to be in full compliance with that provision of the statute, and refers to that statute as having been served thereunder. There was also in force at this time chapter 572 of the Laws of 1886, which required the filing with the corporation counsel of the city within six months after the.cause of action shall have accrued of a notice of intention to commence an action. Both of. these notices seem,to be required to enable the party to maintain successfully an action against the city. (Curry v. City of Buffalo, 135 N. Y. 366.) The learned referee has found as a fact that such notice of intention to sue was filed in due time with' the corporation counsel, and has held as matter of law that the plaintiff had complied with all the statutory requirements as conditions predecent tó the commencement of his action. To this finding exception was duly taken.

There is no evidence in the case of the filing of a notice of intention to sue, except as such notice may be implied in the notice of injury filed upon October second under the Act of 1898 as aforesaid, as amended by the Act of 1904. The notice of January twenty-seventh was confessedly too late. In the notice of October second there is no statement, of an intention to sue.

Two cases are cited by the learned referee and relied upon by the respondent here to sustain this finding. The first case is'the case of Missano v. Mayor (160 N. Y. 123). In that case there was filed with the comptroller of the city notice of intention to sue. This notice afterwards came to.the possession of the corporation counsel. It was held that this -was a sufficient compliance'with chapter 572 of the Laws of 1886, although filed with the comptroller and stated to be a notice in compliance “ with section 1104 of the Consolidation Act of New York City.” In that case, however, the notice of intention to sue was unequivocal and came to the possession of the corporation counsel, and this was held to be a substantial compliance with the statute. In the case at bar it appears that the corporation counsel had notice of the claim for injuries made by the plaintiff, but in such claim there was no notice of intention to sue as appeared in the case cited. The learned referee further cites in support of his holding the case of Sheehy v. City of New York (160 N. Y.139). In that case there was filed with the corporation counsel himself a notice of a claim, and demand for damages for personal injuries. This was signed by the plaintiff and by plaintiff’s attorney, with the post office address of. the latter as required on formal papers in legal proceedings. It was held as there was no statute requiring the service of any other notice upon the corporation counsel, that the filing of this notice with the corporation counsel in the form in which it was made out was a substantial compliance with the Act of 1886. The distinction between that case and the case at bar is that in the case at bar notice was not served upon the corporation counsel and that it was not in form as a legal paper. It will thus be seen that the courts have gone a long way to find a substantial compliance with the Act of 1886. They have not gone, however, and cannot go to the extent of holding that the law is wholly ineffective, and that a mere compliance with the provisions of the Act of 1898 providing for a notice to the city of the defect and of the injury renders unnecessary a compliance with the Act of 1886, requiring a notice of intention to commence an action to be served upon the corporation counsel. The contrary of this position has been held in Curry v. City of Buffalo (supra).

The judgment should, therefore, be reversed'and a new trial granted, with costs to appellant to abide the event.

All concurred, except Chester and Kellogg, JJ., dissenting.

Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event. 
      
      Laws or 1882, chap. 410, § 1104.— [Rep.
     