
    EAGAN v. CITY OF ROCHESTER
    (Supreme Court, General Term, Fifth. Department.
    April 13, 1893 )
    1. Municipal Corporations—Action against—Repeal of Statute.
    Rochester City Charter, (Laws 1880, c. 14,) § 218, as amended by Laws 1881, c. 343, requires lot owners to keep their sidewalks in repair, and actual notice to be given the city of the unsafe condition of sidewalks a reasonable time before the happening of any injury caused by defects therein, in order to render it hable; and also provides that a person claiming damages shall not be allowed costs against the city in an action therefor unless he “shall have, within fifteen days after the happening of tho injury, notified the mayor or city attorney of the time and location of the place where such injury occurred.” Section 80 provides for auditing claims against the city. Laws 1890, „c. 561, amending section 80, provides the, form and manner of presenting unliquidated claims, and adds thereto that no suit thereon shall be brought until 40 days after audit; that suit for injuries caused by negligence shall be brought against the city within one year from the time the injuries were received; and that no such action shall be maintained “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 of the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.” Held, that the provision in the amendment of 1881, requiring notice to be served within 15 days to entitle plaintiff to costs, was repealed by the amendment of 1890.
    2. Same—Action Commenced before and Tried after Repeal.
    Where, in an action brought against such city in 1888, for injuries caused by a defective sidewalk, plaintiff recovered judgment at the trial in 1891, she is entitled to costs against defendant, though she failed to serve notice on defendant of the time and place where the injuries occurred within 15 days thereafter, as required by Laws 1881, c. 343.
    Appeal from special term, Monroe county.
    Action by Margaret Eagan against the city of Rochester for personal injuries caused by a defective sidewalk, in which there was a judgment for plaintiff. From an order directing the clerk of the court to allow plaintiff’s bill of costs and disbursements, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MAOOMBER, and HAIGHT, JJ.
    O. D. Kiehle, for appellant.
    D. C. Feely, for respondent.
   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 $300. By chapter 14 of the Laws of 1880 a charter was created for the city of Rochester, and by section 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 their 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 the 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 council 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, was substantially a re-enactment and incorporation into the city’s charter of the provisions of chapter 572 of the Laws of 1886. The plaintiff failed to give the 15-days notice required by the act of 1881, 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 15-days notice was not given. The object of the enactment requiring the service of the 15-days notice was that the city should have early information of the happening of the accident, so that its law 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 responsibility 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. The amendment of 1890 did not, in terms, repeal section 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 15-days notice was an unreasonably short time, as is 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 did not require that the plaintiff should personally seiwe the notice. It was held in Wheeler v. Insurance Co., 82 N. Y. 543, that the insanity of the insured 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 15 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 15-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. Section 138, Suth. St. Const. “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 15-days notice in order to be entitled to costs. This leads to an affirmance of the order appealed from, which should be affirmed, with $10 costs and disbursements of the appeal. All concur.  