
    Andrew J. Schleicher and Others, Respondents, v. The City of Mount Vernon, Appellant.
    
      ■Negligence of the city of Mount Vernon in the construction ,of a sewer, musing ■.obstruction of highways — measure of the' damage to an abutting owner and . manufacturer, access to whose factory is impaired thereby —failure to fie the claim with the city during the statutory period.
    
    In an action brought by .the. proprietors of a piano factory against the city of Mount Vernon to recover damages resulting from the negligent obstruction, in the course of the construction of-a sewer.by the city, of the highways leading to the factory which necessitated the carrying of the raw materials used in the factory and the pianos produced therein a.considerable distance, the measure of damages recoverable is not the. loss of profit which the proprietors of the factory sustain by reason of its reduced product resulting from the obstruction of the , highways, but simply the reasonable cost of the additional carrying or cartage services necessitated by the obstruction of the highways.
    The fact that, in the performance of such additional carrying or cartage services, the proprietors of the factory employed high priced mechanics ordinarily engaged in the factory will not operate to increase the city’s liability.
    Under section 164.of the charter of the city of Mount Vernon (Laws of 1890, chap. 182), which provides, “all claims against the city for injuries to the person or property claimed to have been caused or sustained by defects, want cf repair or obstructions from snow or ice or .other causes in the highways, .streets, sidewalks or crosswalks of the. city, shall be presented to the common council in writing within three months after the said injury is received,”' and " the omission to present said claim as aforesaid within three months shall be a bar to any claim or action therefor against the city,” the failure of the proprietors of the factory to present their claim to the common council for nearly two years after their cause of action, if any, had accrued, operates as a bar .to their right to maintain the action.
    ... Aep-eal by the defendant, The City of Mount Vernon, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1903, upon the report of a referee.
    
      Roger M. Sherman, for the appellant.
    
      Odell D. Tompkins, for the respondents.
   Woodward, J.:

The plaintiffs, who were engaged in the manufacture of pianos in the city of Mount Vernon in the years 1891 and 1892, bring this action to recover damages for injuries alleged to have been done to their premises and business by reason of the alleged negligence of the city in the construction of a sewer in the streets adjacent to their premises. The action was tried before a referee, who has directed judgment in favor of the plaintiffs for the sum of $4,441.23, this sum being made up of alleged losses sustained by the plaintiffs because they had failed to manufacture and sell the number of pianos which it is claimed they might have manufactured and sold except for the alleged negligence of the defendant in obstructing the highways leading to the plaintiffs’ factory. It is not claimed that the factory itself was injured by the alleged negligence of the defendant; the damages resulted, not from any interference with the building on machinery of the factory, but from obstructing the highway so that the plaintiffs could not bring in the raw materials or ship the manufactured product without carrying the same a considerable distance to the wagons, and it is claimed that this interference with the means of access to the factory reduced the output from six pianos a week, at an average profit of fifty dollars, to two pianos per week, and the damages are computed upon this basis. It seems clear to us that this is an erroneous measure of damages;' that if there is any liability on the part of the city of Mount Vernon it cannot extend beyond a fair compensation for the additional cost of manufacture and distribution, conducted in a reasonably economical manner. The fact that the plaintiffs may have taken high-priced mechanics from their employment within the factory and made use of them in carrying materials, thus decreasing the output and adding unnecessarily to the damages, cannot charge the defendant with liability. It was the duty of the plaintiffs, if the defendant was liable to them for any damages, to make those damages as small as could be reasonably done, and this required, not a reduction in the manufacturing capacity of the plant, but an increase in the cost of freight or cartage charges, and this is all that could be fairly collected in any event, for the factory had the same capacity that it ever had and the only problem confronting the plaintiffs was the means of getting in the raw materials and shipping the finished product. The defendant had not interfered with any other right of the plaintiffs, and it"cannot be made liable for any other losses than such as it had occasioned.

But, as we regard this case, the question of the measure of damages is somewhat academic, for there is a complete bar to the action in the fact that the plaintiffs neither pleaded nor proved a compliance with the conditions precedent prescribed by the charter of the city of Mount Vernon. Section 164 of chapter 182 of the Laws of 1892, which' constitutes a portion of the charter of the defendant, provides that all claims against the city for injuries to the person or property claimed to have been caused or sustained by defects, want of repair or obstructions' from snow or ice or other causes in the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council in writing within three months after the said injury is received,” and “ the omission to present said claim as aforesaid within three months shall be a bar to any claim or action therefor against the city.” This claim matured, if at all, in August, 1892, and the complaint .alleges that the “ plaintiffs have heretofore and on or about the 3rd day of July, 1894, duly presented their claim for the sum of Six thousand ($6,000) dollars damages to the defendant and to the Common Council and proper officers and authorities thereof, and the said defendant, its said Common Council, officers and authorities, have neglected to make an adjustment or payment therefor, although two months have elapsed since the presentment of said claim.” The authorities in this State have uniformly held that a provision of this character in a municipal charter constituted a condition precedent; that it “ absolutely forbids the prosecution of any action until the' proper demand' has been made. It attaches to all actions whatsoever, and by force of the statute becomes an essential part of the cause of action, to be' alleged and proved as any other material fact. It does not purport to give the city a defense dependent upon an election to use it, but expressly forbids the institution of any suit until the preliminary requirements have been complied with.” (Reining v. City of Buffalo, 102 N. Y. 308, 310, cited and followed by a line of authorities not necessary_ to be "here repeated.) The plaintiffs neglected for nearly two years after their cause of action, if they ever had one, had accrued before presenting the claim, and at the time of such presentation there was a complete bar, not only to the claim, but to any cause of action, and this question was raised by defendant’s motion to dismiss at the end of plaintiffs’ case. The motion should have been granted.

The judgment appealed from should be reversed, with costs.

Hirschberg, P. J., Bartlett, Rich and Miller, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  