
    Ann Bannon, Respondent, v. The City of New York, Appellant.
    Second Department,
    April 24, 1912.
    Municipal corporations — negligence—injury by fall on defective sidewalk — sufficiency of notice of claim and of intention to sue — pleading — when right to object to notice not waived — due filing and due notice distinguished.
    Where the complaint in an action against a city to recover for injuries ' sustained by the plaintiff as a result of falling over a defect in the sidewalk, alleges that the plaintiff duly filed a notice of claim and a notice ■ of intention to sue, required by chapter 572 of the Laws of 1886, which notices were defective in that they stated the wrong place of the accident, the failure of the defendant to deny either of these allegations by answer, constituting a mere admission of the filing of the notices, without specifically denying them sufficiency, does not preclude the defendant from raising the question upon the trial.
    There is a distinction between a due filing and a due notice. Hénce an admission that a notice was duly filed is not an admission that a sufficient notice was filed or received.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of October, 1911, upon the verdict of a jury for $300, and also from an order entered in said clerk's office on the 25th day of November 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank Julian Price [James D. Bell and Archibald R. Watson with him on the brief], for the appellant.
    
      Martin T. Manton [Burt L. Rich with him on the brief], for the respondent.
   Hirschberg, J.:

The plaintiff has recovered a small judgment against the city for injuries received by her as a result of falling over a defect in the sidewalk, and the only question on this appeal is whether she sufficiently proved due and proper notice of her intention to sue and of her claim. She duly filed a notice of claim against the defendant with the comptroller, but the notice was clearly defective because it gave the place of accident as Twentieth street, whereas the complaint alleged and the evidence established that the accident occurred on Eighteenth street. She also duly filed with the corporation counsel a notice of her intention to sue, but this notice also was defective and for the same reason. The complaint alleged:

“VII. That on or about the 24th day of October, 1908, the plaintiff duly filed a notice of claim against the defendant with the Comptroller of The City of New York, asking payment of ten thousand dollars, and payment thereof has not been made, and said claim has not been adjusted, and that more than thirty days have elapsed since the filing of and neglect to pay said claim.

“VIII. That on or about the 24th day of October, 1908, the plaintiff duly filed with the Corporation Counsel of the said City a notice that it was her intention to sue the said City to recover the sum of ten thousand dollars damages for the said injuries sustained by her by reason of the defendant’s negligence and wrongful acts as aforesaid.”

The answer failed to deny either of these paragraphs.

At the close of the plaintiff’s testimony the proofs of the notices were admitted in evidence and the plaintiff rested, whereupon the counsel for the city moved to dismiss the complaint on the ground, among others, “ That they had filed a claim and a notice, but are compelled to show that the claim and the notice complied with the statute. The Court: The answer admits that they duly filed a claim and duly filed a notice.” The motion was denied and an exception taken. Subsequently the jury rendered a verdict for the plaintiff in the sum of $300, and on defendant’s motion to set the verdict aside and for a new trial the following opinion was written by the learned trial justice: “I think the defendant is barred from objecting that the notice was insufficient by admitting the allegation of the complaint that due notice of the accident therein set forth was received. The plaintiff might well be misled by such admission, whereas if the allegation had been denied she might have served another notice in time. The motion to set aside the verdict is therefore denied. ” I think there is a clear distinction, overlooked by the learned trial justice, between a due filing and a due notice. The complaint did not allege that a due notice was filed or received. The allegation was merely that a notice was duly filed, and the admission that a notice was duly filed is far from an. admission that a due notice was filed or received.

The question presented has been decided by the Court of Appeals adversely to the- contention of the plaintiff. The notice in the case at bar is required by chapter 572 of the Laws of 1886, relating to cities of 50,000 inhabitants or over. A similar statute (Village Law [Gen. Laws, chap. 21; Laws of 1897, chap. 414]], § 322) requiring like notice to village's was under review in Carson v. Village of Dresden (202 N. Y. 414). The plaintiff alleged in the complaint in that action that a statement, following the language of the statute, was filed. The answer admitted that “.a statement of plaintiff’s alleged claim against defendant was filed,” but denied “that such statement was sufficient under the statute.” I think the decision of the Court of Appeals is to be regarded as holding that a mere admission of the filing of the statement without a specific denial of its sufficiency would not preclude the defendant from raising the question upon the trial. Judge Gray, writing for the unanimous court, said (p. 418): “ The filing of the statement was a condition precedent to the maintenance of the action. ‘ No action shall be maintained * * * unless a written verified statement * * "" shall have been filed,’ is the language of section 322 of the Village Law and that makes it essential to the cause of action that the statement, as prescribed, he alleged and proved. The provision is prohibitive of a recovery until performance he shown. (Winter v. City of Niagara Falls, 190 N. Y. 198; Curry v. City of Buffalo, 135 id. 366; Reining v. City of Buffalo, 102 id. 308.) If we might "assume that the defendant’s counsel could waive the requirement of - the statute, as to which I have grave doubts, there still remains the insuperable difficulty that the admission of filing and service of the notice as alleged in the complaint’ was not effective for anything, if the statement itself was insufficient in law. That is to say, the admission left it still to be determined as a question of law whether the statement alleged in the complaint to have been filed was a sufficient compliance with the statute.”

It follows that the judgment and order should be reversed.

Jerks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  