
    Nathan Weinstein and Louis Marsch, Appellants, v. The City of New York, Respondent.
    First Department,
    May 2, 1913.
    Municipal corporations — city of New York —. notice of intention to sue.
    A notice of claim against’the óity of- New York for damages to property filed pursuant to section 261 of the city charter, as amended, is not void merely because it does not in direct terms state that the claimant intends to sue, if the claim, otherwise in due -form, was filed with the comptroller who examined the claimant as to its merits. This, because under the circumstances the comptroller was sufficiently advised that an action was contemplated.
    
      It seems, that the service upon the corporation counsel of a notice of intention to sue is not equivalent to notice to the comptroller.
    Appeal by the plaintiffs, Nathan Weinstein and another, from an order of the Appellate Term of- the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of November, 1912, affirming a judgment of the Municipal Court of the city of New York dismissing the complaint.
    
      Milton Diamond, for the appellants.
    
      William E. C. Mayer, for the respondent.
   Scott, J.:

This appeal presents but a single question which requires consideration. The action is for damages to personal property caused by the breaking of a water pipe, and consequent flooding of plaintiffs’ premises. The complaint was dismissed for the supposed insufficiency of a notice of claim filed with the comptroller.

Section 261 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 677 of the Laws of 1907, provides that no action of this character may be maintained against the city unless such action shall be commenced within one year after the cause of action therefor shall have accrued nor unless notice, of the intention to commence such action ” and containing certain specified particulars shall have been filed with the comptroller of said city within six months after such cause of action shall have accrued. (See, also, Laws of 1912, chap. 452, amdg. said § 261.)

The plaintiffs did file with the comptroller, within six months after the damage had been suffered, a notice of claim, which complied with the statute in every respect, except that it did not in terms state that plaintiffs intended, to sue. The claim was given a claim number by the comptroller, and in due course, pursuant to a notice served upon them by the comptroller, the claimants appeared at the office of the comptroller and were examined touching the merits of the- claim. The complaint was dismissed solely upon the ground that the notice was insufficient under the statute; the only insufficiency being that already mentioned, that the notice did not in terms state that plaintiffs intended to sue.

The case is not, in our opinion, to be distinguished in principle from Sheehy v. City of New York (160 N. Y. 139). That action was for personal injuries and the question involved arose under chapter 572 of the Laws of 1886, which .required that in such cases, before an action could be maintained, a notice of claim containing a statement of the intention to sue should be served upon the counsel to the corporation. Sheehy served a notice of claim, but omitted, as did the present plaintiffs, to specificially state in terms an intention to sue. The Court of Appeals held that the notice served in that case was a substantial compliance with the statute, and sufficiently apprised the city’s representative that the claimant entertained the intention to sue if necessary to enforce her claim. The same is true of the notice in the present case. Inferentially it certainly was sufficient to advise the comptroller that an action was contemplated, and that he so understood it is evidenced by the fact that he caused the claimants to be examined before him.

The plaintiffs álso served upon the corporation counsel a notice of their intention to sue. This, of course, added nothing to the notice served upon the comptroller, and would not serve to make that notice effective if not otherwise sufficient. It does serve, however, to show that the city did in fact receive notice of the intention to sue, and could not have been prejudiced by any informality in the notice served on the comptroller.

The courts have always shown a disposition to give a reasonable construction to the statute requiring such notices to be served, and to uphold notices which are merely informal, but which are sufficient to serve the purposes for which the statutes have been enacted. (Missano v. Mayor, 160 N. Y. 123; Walden v. City of Jamestown, 178 id. 213; Halpin v. City of New York, 82 App. Div. 311; Shaw v. City of New York, 83 id. 212.)

The determination of the Appellate Term and the judgment of the Municipal Court must be reversed and a new trial granted, with costs to the appellants in all courts to abide the event.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Determination of Appellate Term and judgment of Municipal Court reversed and new trial ordered, with costs in all courts to appellants to abide event. Order to be settled on notice.  