
    Margaret Sehl, Appellant, v. The City of Syracuse, Respondent.
    
      Dismissal on plaintiff’s opening—presumption that facts offered, and not permitted, to be proved, could have been proved — injury from a fall on a sidewalk in the city of Syracuse occurring four days before the charier of cities of the-second class (applicable to such city) took effect— time within which notice must be given to the city.
    
    Where a complaint is dismissed upon the facts stated by the plaintiff’s counsel in his opening to the jury, and the plaintiff’s counsel thereupon offers to prove; certain additional facts, which offer is refused by the trial judge, it will be., assumed, on an appeal from the judgment dismissing the complaint, that such additional facts could have been proven, had the opportunity to do so been granted.
    December 27, 1899, a person fell upon an icy sidewalk in the city of Syracuse, sustaining personal injuries... At that time the charter of the city of Syra'cuse-. (Laws of 1885, chap. 26, § 250, as amd. by Laws of 1888, chap. 449) provided that no liability for such an injury should attach to the city, “unless written, notice specifying the time, place and cause of such injury or damage shall be; served on the mayor or city clerk within six months after the injury or damage was received, nor unless an action shall be commenced within one year after the service of such notice.”
    January 1, 1900, the charter of the government of cities of the second class, to which the city of Syracuse belongs, went into effect. Section 461 of such charter (Laws of 1898, chap. 182, as amd. by Laws of 1899, chap. 581) provided that, the omission of a. party claiming damages for injury to person or property to present such claim in writing to the common council “ within three months, or to commence an action thereon within one year, shall be a bar to any claim or action therefor against the city.”
    The injured person, in compliance with the statutory provisions in existence at the time of the accident, filed the notice therein specified on the 27tli day of June, 1900, nearly six months after the new charter -went into operation, and brought her action against the city on the 1st day of October, 1900. ■
    
      ■Held, that she did not lose her right to maintain the action because of her omission to file the claim within the time specified in section 461 of the charter of cities of the second class, as it was not intended that such section should have a retroactive force or apply" to existing cases.
    -Hiscock and Spring, JJ., dissented.
    Appeal by the plaintiff, Margaret Sehl, from, a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Onondaga on the 1st day of July, 1902, upon the dismissal of the complaint by direction of the court •after a trial at the Onondaga Trial Term.
    
      John H. McCrahon, for the appellant.
    
      Alexander H. Cowie, for the respondent.
   Nash, J.:

The plaintiff’s complaint herein was dismissed at the trial upon the facts stated by her counsel in "his opening to. the jury. Thereupon an offer was made to prove certain additional facts which was refused by the court; but for the purposes of this appeal it must be assumed that those facts could have been proven had the' opportunity to do so been granted. (Higgins v. Eagleton, 155 N. Y. 466; Place v. N. Y. C. & H. R. R. R. Co., 167 id. 345, 347.) And this assumption brings up for our review the following facts, viz.: On the. 27th day of December, 1899, the plaintiff received serious personal injuries" by reason of falling upon an icy sidewalk •on Dewitt street in the city of Syracuse, which icy and unsafe condition the defendant had negligently permitted to exist.

At the time of receiving such injuries the charter of the city (Laws of 1885, chap. 26, § 250, as amd. by Laws of 1888, chap. 449) provided that no liability therefor should attach to the municipality “ unless written notice specifying the time, place and cause of such injury or damage shall be served on the mayor or city clerk within six months after the injury or damage was received, nor unless an action shall be commenced within one year after the service of such notice.”

But on the 1st of January, 1900, four days after the accident, the new charter for the government of cities of the second class (to which the city of Syracuse belongs) went into effect, and by its terms it was provided that the omission of a party claiming damages for injury to person or property to present such claim in writing to the common council “ within threé months, or to commence an action thereon within one year, shall be a bar to any claim or action therefor against the city.” (Laws of 1898, chap. 182, § 461, as amd. by Laws of 1899, chap. 581.)

The plaintiff, in compliance with the requirements of the charter in existence at the time of the accident, filed the notice therein specified on the 27th day of June, 1900, nearly six months after the new charter went into operation, and brought her action on the first - day of October following.

The single question, therefore, with which we have to deal is, whether or not the plaintiff has lost her right to maintain this action by reason of her omission to file her claim within the time specified in the new charter.

Judge Earl states the rule for the construction of statutes as follows: “ It is always to be presumed that a. law was intended,

as is its legitimate office, to furnish a rule of future action, to be applied to cases arising subsequent to its enactment. A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only ” (New York & Oswego M. R. R. Co. v. Van Horn, 57 N. Y. 473, 477); and in the same case, quoting Jewett, J., in Palmer v. Conly (4 Den. 376), “it is a doctrine founded upon general principles of the law, that no statute shall be construed to have a retrospective operation, without express words to that effect,, either by an enumeration of the cases in which the act is to have such retrospective operation, or by words which can have no meaning unless such a. construction is adopted.” Also Duer, J"., in Berley v. Rampacher (5 Duer, 188) says: “Although the words of the statute are so general and broad as in their literal extent to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed.”

Applying the rule thus stated to the language of section 461 of ■the act for the government of cities of the second class, it cannot be held that the Legislature intended that the provision of the section should have a retroactive force or apply to existing cases. There are no express words to that effect, and, therefore, as stated by Duer, J., even though the words of the statute are so general and broad as in their literal extent to comprehend existing cases, they must be construed as applicable only to such as may thereafter arise.

Moreover, it is plainly to he inferred from the context that the section is intended to operate prospectively only. The opening sentence of the section prescribing that the city shall not be liable for injuries sustained in the absence of actual- notice, unless the defective and dangerous condition of the street or walk shall have existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence, is applicable only to cases which shouldthereafter arise. The second sentence following comprehends the preceding matter and must be regarded as having reference to it. To give to the general words, which have direct reference to the matter preceding them a more comprehensive meaning would be interpolating a sense beyond then-grammatical construction,

The saving clause of the statute is also of importance in this connection. Any right already existing or accrued is thereby éxpressly excluded from the operation of the act, (§ 482.) A right existing or accrued includes both an injury received and a claim therefor upon which a right of action has accrued by giving the requisite notice under the former or existing statute. The existing right in the sense there used is the injury, the cause of action as distinguished from the notice required to be given which pertains to the remedy, and is the sense in which the word “ right” is used by Judge Gray in Missano v. Mayor (160 N. Y. 133) in that part of his opinion which expressed the views of the court. It is the only sense in which the word as used in the statute can have any application, for if the right to maintain the action had accrued by giving the requisite notice under the prior statute a saving clause was not necessary.

Again, the statute itself, if intended to be applicable to existing rights, should have made provision for their enforcement. As stated by Judge Gray in Gilbert v. Ackerman (159 N. Y. 124): “It should not be left to supposition and inference from the circumstances.” If an injury occurred on the last day before the statute took effect the injured person would have had the full period in which to give the six months’ notice, and going back the time to give the requisite notice would be lessened until the existing right would be entirely lost. A statute having that effect was held, in Gilbert v. Ackerman, to be an invalid exercise of legislative power.

The power of the Legislature to make the statute relating to the remedy operate retroactively within reasonable limits is not questioned, but it must expressly so enact.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event, on questions of law only, the facts having been examined and no error found therein.

Adams, P. J., and McLennan, J., concurred; dissenting opinion by Hiscook, J., in which Spring, J., concurred.

Hiscock, J. (dissenting):

, As stated in the prevailing opinion, it must be assumed upon this appeal that upon the 27th day of December, 1899, plaintiff received personal injuries by reason of the negligence of the defendant in allowing a sidewalk to be in an icy and unsafe condition. The only question presented is whether chapter 581 of the Laws of 1899 (amdg. Laws of 1898, chap. 182, § 461), which took effect January 1, 1900, applied to plaintiff’s case, and reduced from six months to three months the period within which she was compelled to serve notice of her claim upon the city authorities in order to maintain this action. If it did, the action is barred through her failure to comply therewith.

It will be noted that the law was passed before plaintiff’s cause of action arose; that it took effect four days thereafter, and that consequently plaintiff, with the exception of those few days, had the full period of three months within which to file her notice which a person would have upon a cause of action accruing after the act took effect.

1 am unable to agree with the reasoning which leads the majority of the court to conclude that said law did not apply to this case.

I do not understand that there is any serious dispute that the law in question relates to the procedure by which plaintiff may secure a remedy upon her cause of action, as distinguished from a law relating to or affecting the cause of action itself. If there is anywhere any doubt upon this proposition, I think it must be effectually dissipated in the light of the following cases: Missano v. Mayor (160 N. Y. 123, 133); Sheehy v. City of New York (Id. 139, 143).

The precise issue, therefore, is whether a statute passed before a cause of action accrues, but taking effect almost immediately thereafter, applies to the procedure to enforce such cause of action instituted after the the statute took effect.

In considering the act we are to bear in mind that the whole matter of the maintenance of this class of actions is within the control of the Legislature; that it can refuse a right of action against municipalities for such injuries and it can impose any conditions precedent to the maintenance of such action. These actions against cities are numerous and the Legislature seems to have been solicitous to protect them so far as possible against unjust or excessive claims'. (Curry v. City of Buffalo, 135 N. Y. 366, 370.)

As was held by this court in De Vore v. City of Auburn (64 App. Div. 84, 86), with reference to a statute requiring 'that notice of a claim be filed with the city clerk: “Eo reason is apparent why a forced or strained construction should be placed upon the language of the statute for the purpose of relieving a litigant from the necessity of complying with the plain terms thereof.”

It is true that the statute under review is not by express terms made applicable to notices of claims accruing before it went into effect. Eeither does it by its terms exempt such claims from its operation unless by virtue of various saving clauses hereafter to be considered. We are, therefore, relegated to the general rules which govern the interpretation and application of such a statute. I think that those rules make it applicable at least to proceedings instituted after the statute goes into effect, even though upon claims accruing prior thereto. (Southwick v. Southwick, 49 N. Y. 510; Acker v. Acker, 81 id. 143, 148; Matter of Davis, 149 id. 539, 545; Lazarus v. M. E. R. Co., 145 id. 581, 585; Conyngham v. Duffy, 125 id. 200; People ex rel. Collins v. Spicer, 99 id. 225, 233.)

In the last case it is said: “ The general rule, which, in the absence of express language authorizing retroaction, requires a statute to be so construed as to have a prospective effect only, is not, except as to a certain class of statutes, an inflexible one. It is said in 1 Kent’s Commentaries, 455, that ‘ This doctrine is not understood to apply to remedial statutes which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.’ ”

In Conyngham v. Duffy (supra) it was held that the provisions of the Code of Civil Procedure which changed from twenty years to ten years the time within which proceedings supplementary to execution might be instituted, applied to proceedings instituted upon a judgment obtained and execution issued while the provisions of the Code of Procedure were in force which allowed twenty years.

In Lazarus v. M. E. R. Co. (supra) after the submission of a case to a referee and after the presentation of proposed findings and before the decision by the referee, the provision of the Code of Civil Procedure was repealed which required the referee to pass upon the proposed findings. It was held that the law applied to proceedings which not only related to a cause of action accruing before the change took effect, but which were themselves instituted prior thereto. The court say that the act was not retrospective as to the defendents “ if by the general rule of law the procedure in an action is governed by the law regulating it at the time any question of procedure arises. It is well settled that the Legislature may change the practice of the court and that the change will affect pending actions in the absence of words of exclusion. * * * It would be a very inconvenient rule, tending to great confusion, if a rule of practice existing when an action is commenced attaches itself to the substance of the right in litigation so that it could not be changed, or that a law changing procedure should be held inapplicable-to subsequent proceedings in pending actions unless in terms made applicable thereto. It is the right of a party to have his case heard and decided in the - orderly course of legal procedure, but he has no right to demand that the-procedure prescribed when the action was commenced should remain unchanged. He prosecutes his action subject to the power of the Legislature in matters of practice to abrogate rules existing when his action was brought, or make additional rules, and all subsequent proceedings will be governed thereby.”

Matter of Davis (supra) was a proceeding to ascertain and enforce an inheritance tax. The person whose estate was involved died January 16,188,7. The method of procedure for the enforcement of the Transfer or Inheritance Tax Law was somewhat changed by the Laws of 1887 (Chap. 713) and those of 1892 (Chap. 399), The court held that the proceedings were to be governed by the laws in force at the time when they were instituted rather than by those in force at the time when the tax accrued, saying:

■ “ The procedure is controlled by the statute as it existed at the time this proceeding was instituted. It is a general rule that,.in the absence of words of exclusion, a statute which relates to the form of procedure or the mode of attaining or defending rights, is applicable to proceedings pending or subsequently commenced.”

• In Acker v. Acker (supra) it was said: “ A statute of limitations, inasmuch as it takes away the remedy only and doés not impair the obligation, affects the remedy on contracts made before, .as well as those made after the passage of it, unless it contains some provision saving prior contracts from the operation of it.”

In Southwick v. Southwick (supra) it was said : “ It cannot be successfully contended, as a.general rule, that an act which applies only to the forms of procedure and modes of attaining or defending rights cannot be availed of in an action pending when it took effect.”

It does not seem to me that the authorities -cited in the prevailing opinion to sustain the proposition that the statute in question did not apply to proceedings instituted for the enforcement of the claim after it took effect are pertinent.

In the case of New York & Oswego M. R. R. Co. v. Van Horn (57 N. Y. 473, 478) it was contended that the statute had the effect to make a contract executed before its passage valid, when, without the statute, it was concededly invalid, and the Court, very properly and necessarily, laid down the rule covering such a case. The statute there under review directly related to and affected a cause of action, not any remedy or course of procedure for its enforcement, and it was clear that the construction claimed by one of the parties would make the statute unconstitutional. The same general observations may be made in reference to the case of Palmer v. Conly (4 Den. 374) and from the opinion of Judge Jewett, in which case a-citation is made in the prevailing opinion here.

It must be always kept in • mind that the statute under review relates to a step towards the enforcement of a cause of action taken after the statute went into effect, and, therefore, it can scarcely be said to be at all retroactive. It was rather prospective in providing the rules which should govern proceedings after its. enactment.

It is further suggested, in substance, that-while this act took effect only four days after- the cause of action accrued, and, therefore, did not materially reduce the full time which a party might have for serving notice, still a ease might be assumed where the Cause of action accrued so long before the act took effect that if the latter were applied it would practically leave no time within which to serve notice and “ the existing right would be entirely lost.”

It would,, perhaps, be a .sufficient answer to say that that contingency is not presented in this case, but a further and broader reply is found in the rule that a statute of this kind must be reasonable in its provisions and that the courts will not so apply it as to cheat or deprive a party of his right of action. (Lazarus v. M. E. R. Co., supra, 585; People v. Tweed, 5 Hun, 382; Walden v. City of Jamestown, 79 App. Div. 433; 80 N. Y. Supp. 65.)

I next pass to a consideration of the special reasons assigned why this statute should hot be applied to plaintiff’s notice.

It is first urged that “it is plainly to be inf erred, from the context that the section (461) is intended to operate prospectively only. The opening sentence of the section prescribing that the city shall hot be liable for injuries sustained in the absence of -actual notice? * * * is applicable only to eases, which should thereafter arise. The secón,d ¡sentence following comprehends the preceding matter and must be regarded- as having reference to it.”

Again, I thmk recognition fails of the fact that defendant here seeks to have the statute applied to a mere Step in a proceeding to enforce a claim to be taken after the statute went into effect, and that this contention scarcely calls for a retroactive application of the law. Upon the -otlipr hand, the preceding sentences -to which reference is made plainly and distinctly relate to a claim .or cause of action itself rather than to a proceeding to enforce it. Those preceding sentences, sq far as they create any new conditions, absolutely destroy any liability or cause of action in the absence of notice to. the city of an alleged defect which might be the basis of a cause, of action. They create new essential elements to any liability upon the part qf the city and abrogate causes-.qf action which theretofore. might, have, existed. Uaturally, within" authorities already cited-, and rulés well established, such provisions of the statute, would neither be held or be allowed to apply retroactively and destroy vested rights and causes of action- I am unable to discern between the subject; qf these sentences and. of the succeeding ones especially under consideration any such relation as affords an argument for plaintiff’s contention in this case.

It is n.ext. said that. The saving clause qf tlie' statiife is also qf importance in this connection. Acy tight already existing or. accrued is thereby expressly excluded from the operation of the act. (§ 482.) A tight existing or accrued includes both an injury received and a claim therefor upon which a right of action has accrued, by giving the requisite notice under the former- or existing statute.” Said .statute, reads : “■ All statutes of the State and-ordinances of the city , so far as inconsistent with the provisions of this apt aré'hereby repealed, but such repeal shall nqt affect any right already existing or accrued, or any liability incurred by reason of any violation of any law heretofore existing, or any suit or proceeding already instituted, or action had under the laws or ordinances, unless otherwise expressly prqvided in this act.”

Up right of plaintiff existing or accrue^ was affected by this legislation. The only right which she had when it was adopted was her cause of action against the city for its negligence. She. had nq vested right to any specified course of procedure for the enforcement of that liability. The service of the notice of claim was one of the steps in that course of procedure, and the Legislature had a perfect right to adopt new regulations with reference to that step and notice so long as it did not under the guise thereof deprive her of her cause of action.

In the Lazarus case already cited (at p. 584) attention was called to a statutory saving clause in language quite similar to the one here relied upon. It was there urged as here that such saving clause prevented, in an action then pending, the application of the statutory provision which deprived a party, of the right to have a referee pass upon his requests to find, but the court in delivering its opinion upon this point (at p. 586) say: “The only right which accrued to the defendants upon the submission of the proposed findings was the right to demand from the referee an observance of the provisions of section 1023. But it was a conditional right only, and the abrogation of the duty to pass upon the findings consequent upon a repeal of the section was not in any proper sense an impairment of any act theretofore done by the defendants or any right accrued to them. * * * The defendants could no longer require the performance of the duty in their behalf, because the Legislature had changed the procedure and abrogated the duty.”

It has been suggested, perhaps, rather than seriously argued, that the saving clause in section 461 (as amd. by Laws of 1899, chap. 581) prevents the application of that section to this case. That clause reads: “ Nothing contained in this section shall be held to repeal or modify any existing requirement or statute of limitations which is applicable to this class of actions, but on the contrary shall be held to be an additional requirement to the right to maintain such action.” The class of actions referred to includes the one at bar.

It will be noted that the said “ saving clause ” does not make any distinction in its application as between causes of action arising before and after its enactment. Its reference is to provisions of law then existing and applicable to a certain class of actions, and which provisions, of course, would cover causes of action thereafter accruing. Therefore, if the construction is correct that this “ saving clause ” prevents the new requirement for service of a notice of claim within three months, from modifying the old provision allowing six months, the effect of such clause is not confined to causes of action theretofore having arisen, but it likewise prevents such modification from taking effect as to causes of action thereafter accruing. The result of this would be that the Legislature, having adopted a provision specifically and explicitly requiring service • of notice within three months, would be held to have absolutely annulled such provision by thereafter providing in the same section that such new provision should not qualify or modify the old provision, which allowed six months for service of notice. It seems to me very clear that the Legislature intended to reduce the time of service of notice of claim from six to three months, and that we should not thwart its, purpose by such a construction unless compelled so to do. I do not think that we are so driven.

It would seem to be a more reasonable construction to hold that this clause was inserted in a spirit of abundant precaution to prevent the new statute from working through implication or general construction a repeal or modification of some statute or requirement ■ then existing for the benefit of the city, outside of those expressly covered by and treated in the sections then adopted and which it was not intended to disturb. On a line with this idea we find the further saving clause that nothing contained in said section should be held to modify any existing rule of law relative to the question of contributory negligence, etc. The authors of the new charter were apparently apprehensive that in framing provisions covering certain subiects they might be held to have intended to repeal or revise other legislation then existing for the benefit of the city, and for which, in fact, no substitute was provided. Hence the provision referred to, and also the other one, that anything contained in the section then being adopted, so far' from annulling any existing requirement, should be deemed to be an addition to it.

The provision that notices of claims such as these should be served within three months might, perhaps, be fairly said to be a requirement for the protection of the city additional to the former allowance of six months in which to perform such acts.

As suggested, such an interpretation as this of the clause under consideration seems to me more reasonable than to hold that the Legislature, having by express enactment substituted for a period of six months one of three months, then in the same section proceeded to render their act entirely nugatory.

Some further reasons are urged by the learned counsel for the appellant why the judgment should be reversed, which, however, do not seem to me to require extended or serious consideration.

In the opening upon which plaintiff’s complaint was dismissed her counsel said: There is one more suggestion which I want in the minutes and that is this : That the plaintiff proceeded to bring her action against the city as soon as she was able to get out and look after her matters.” No fault is found with the date at which plaintiff commenced her action and the statement in question comes very far, even if in language at all applicable, from outlining a sufficient excuse for not serving the preliminary notice within a space of three months. (Barry v. Village of Port Jervis, 64 App. Div. 268; Green v. Village of Port Jervis, 55 id. 58.)

It is finally urged that in order to raise the question (of the notice) the defendant should have plead the statute in its answer, it being a matter of affirmative defense.”

The section requiring the giving and serving of notice in question provides: Nothing contained in this section shall be held to repeal or modify any existing requirement or statute of limitations which is applicable to this class of actions, but on the contrary shall be held to be an additional requirement to the right to maintain such action.” I think that this provision specifying this notice as an additional requirement to bringing an action made it one of the conditions precedent and imposed upon plaintiff the burden of both alleging and proving her case in this respect and did not leave it to defendant as a matter of affirmative defense to allege and prove her failure so to do. (Reining v. City of Buffalo, 102 N. Y. 308.)

I think the judgment should be affirmed, with costs.

Spbiito, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event, upon questions of law only, the facts having been examined and no error found therein. 
      
       1 Kent’s Comm. (13th ed.) *455.— [Rep.
     
      
       Code Civ. Proc.— [Rep.
     