
    Albert J. Winter, Appellant, v. City of Niagara Falls, Respondent.
    Fourth Department,
    May 1, 1907.
    Municipal corporations — negligence — obligation, to file claim against city for negligence not suspended by infancy—waiver of requirement by municipality.
    Compliance with the requirement of the charter of the city of Niagara Falls, that claims for damages founded upon alleged negligence of the city shall he presented to the common council in Writing within, thirty days after the occurrence, is not excused by the- infancy of the claimant; unless extreme youth or disabilities caused by the accident render the filing of the claim impossible. No rigid rule is established; each case must be a law unto itself within reasonable limits. • ■
    Said provision is not in the nature of a Statute of Limitations which is suspended by infancy, but is designed rather to afford the municipality an opportunity to make an early investigation of the claim.
    When the municipality, however, after the filing of an overdue notice of claim, makes an investigation of the accident and examines the plaintiff before the city judge, there is a waiver of the requirement of the charter.
    (Per McLennan, P. J.): The statutory requirement .for the. filing of the claim- is suspended by infancy. ’ . -
    Kruse, J., dissented,, with opinion.
    Appeal by the plaintiff, Albert J. Winter, from a judgment of the Supreme Court in favor of the defendant, entered- in the office of the clerk of the county of Niagara on the 11th day of October, 1906, upon the decision of the court, rendered after a trial at the Erie -Special Term, sustaining the defendant’s demurrer to the complaint.
    The complaint alleges that on the 13th day of Flay, 1901, the plaintiff was -driving a -horse attached to a delivery wagon along Flichigan avenue in the city of Niagara Falls. A steain roller, which had been, standing-in the street and which was'controlled and operated by the defendant, “suddenly and without.warning” was set in motion, discharging steam and smoke with a loud noise, frightening the plaintiff’s horse so that he became unmanageable, running away, precipitating the plaintiff to the ground and seriously injuring him. The complaint states facts indicating that the servants of the defendant were negligent in the operation of the roller, and the action is brought to recover for the injuries- the plaintiff has sustained.
    The facts relevant to the issues involved in the appeal are contained in the opinion.
    
      John T. Fyán, for the appellant.
    
      Frcmklin J. Maokenna, for the respondent.
   Spring, J.:

The defendant is a municipal corporation, and section 53 of its charter (Laws of 1892, chap. 143, as amd. by Laws of 1897, chap. 739) in operation at the time the plaintiff was injured, provided that any claim “ for damages founded upon alleged negligence of the city shall be' presented to the common council in writing within thirty days after the occurrence causing such damages;” and the contents of the notice are enumerated in the section. It also enacts that the omission to present a claim in compliance with the statute “ shall be a bar to an action against the city.” Further, that no action shall be commenced to enforce the claim until. forty days after it is presented to the common council for audit.

The plaintiff was in his eighteenth year at the time he was injured, and became of age July 17, 1904. No notice of claim or of intention to sue was presented to the common council by any one on behalf of the defendant until within thirty days after the plaintiff attained his majority. The complaint alleges that on the 19th day of July, 1904, the plaintiff caused a notice of intention to commence suit to recover damages for his injuries to be served on the clerk of the defendant, and .also a verified petition directed to the common council to be filed with the clerk containing therein facts as to the nature and extent of the plaintiff’s claim due to said accident, and that forty days had expired since the filing of said petition.

The charter of the defendant' had then been revised (Laws of 1904, chap. 300), and section' 523, providing for the presentation of claims for damages arising from the alleged negligence of the defendant, was substantially a re-enactment of the provisions theretofore in force. The claims must be presented within thirty days, in the language of the amended statute, “ after the happening of the accident or injury out of which the claim arose.”

The contention of the plaintiff is that this is a statute of limitation and it did not' commence to run against him until he attained his majority. In other words, there being no specific disavowal of the Code provisions in the charter, that the disability of infancy is applicable to a' claim of this kind as in other actions. (Code Civ. Proc. § 396.) The trend of the recent cases has been to accord to claims of this character the benefit of the exceptions exemptingthe operation of the limitation' statute in spite of subdivision 1 of section 414 of the Code of Civil Procedure. (Conolly v. Hyams, 176 N. Y. 403; McKnight v. City of N. Y., 186 id. 35 ; Hayden v. Pierce, 144 id. 512, 518 ; Hamilton v. Royal Ins. Co., 156 id. 327 ; Titus v. Poole, 145 id. 414; Crapo v. City of Syracuse, 183 id. 395.)

We think those cases are not applicable to the question pending before us. In those which,may bear somewhat directly upon the question up for review there was involved the construction of chapter 572 of the Laws of 1886, which provided that no action * * * for damages for personal injuries- * * * .shall be maintained unless the- same shall be commenced within one year after the cause of action therefor shall have accrued.” This -was plainly a limitation upon the time to commence the action, and the courts have held with considerable uniformity that the cause of action did not accrue until there was a person capable of maintaining it. Also that the exception for the benefit of an infant in section 396 of the Code of Civil Procedure is of-general application. Section 414 of said Code enacts that the provisions contained in chapter 4 of the Code of Civil Procedure, regulating the limitation of actions, “ constitute the only rules of limitation applicable to a • civil action *' * * except in one of the following cases: 1. A case where a different .limitation is specially prescribed' by law, Or a shorter limitation is prescribed by the written contratit of the parties.”

In .the McKnight Case (supra) the. plaintiff was a minor when the action was commenced and under fourteen years when injured. The court in discussing the effect of- this subdivision stated that it would be “ too narrow a construction ” to hold that its effect was to deprive an infant plaintiff of the benefit of the provisions of section 396 ” of the Code of Civil Procedure; Again, that the effect of the act of 1886 was to pare down the limitation of three years in subdivision 5 of section 383 of the Code to one year in actions for personal injuries against cities of fifty thousand inhabifcants or over, and there is no evidence of any “ legislative intent to deprive an injured infant in such cases of the benefit of the general exception contained in section 396.”

I have referred to these cases for the purpose of showing that they were directed solely to the .period of limitation upon the commencement of actions in negligence cases.

The requirement that the person injured who seeks to hold the city liable for his injuries must within thirty days “ after the happening of the accident” present a claim showing the time'and place of ■ the accident does not relate to the commencement of the action. The object of the requirement is to enable the municipal officers to investigate the genuineness of the claim while the facts are fresh, and the evidence may more readily be obtainable, justifying either the payment or the rejection of the claim. (Sheehy v. City of New York, 160 N. Y. 139,143.)

Legislation of this kind has been a necessity in view of the multitude of claims presented for personal injuries founded upon' the alleged carelessness of the municipalities, and some of which claims have apparently been without merit. A reasonable construction should be given statutes of this kind, on the one hand, to render more difficult any attempt to mulct the cities by unfounded claims, and, on the other hand,, not to interpose unreasonable technical barriers to the enforcement of those which are meritorious. No rigid rule can be established. If an infant of ten years is injured, with no one capable of presenting a claim to' the common - council, the strict limitation of the statute should not be raised against him. If twenty years of age and mature, and not disabled unduly by his injuries, then the statutory requirements should be applicable.

“ Each case must be a law unto itself ” within reasonable limits.

In many of the cities there is a charter requirement that where a plaintiff has been injured by reason of a defective street, his claim must be served upon a designated official of the city within forty-eight hours after the accident. The courts, in construing this provision, have held that if the plaintiff was prevented by disability from serving the notice within the time' of the charter requirement a service shortly after the removal of the disability was a substantial compliance with the statute. (Walden v. City of Jamestown, 178 N. Y. 213, affg. 79 App. Div. 433.)

In this case the plaintiff-was eighteen years of age, and we cannot determine on the complaint itself, without any proof, that he lacked the ability and intelligence common to young men of that age. lie may have been able to serve the required notice within the thirty days and yet not be capable of commencing the action within one year. The notice of his claim would not necessarily bar him from asserting his infancy as the reason for not commencing the action within a year. There are two independent requirements. One, to enable the city to investigate the character of the claim before it becomes stale and the evidence pertaining to it disappears. The ' other is purely a limitation upon the period for commencing the' action, and disconnected with the preliminary examination of the ■ demand. -

: In the MoKnight case the notice of intention to commence the' action and “of ,the time and place at which the injuries were received ” was filed on time. If that had not been done a different decision might'have been rendered. The sole question in the case was as to the limitation upon the action, and no allusion is made to -the filing of the notice of intention. A notice served by an infant is valid. (Donovan v. City of Oswego, 42 App. Div. 539, 542.)

It does not follow because he serves it, however, that he must commence the action within a year if he does not reach his majority within that timó. The service of the notice of claim is a condition precedent to the maintenance of the action.' (MacMullen v. City of Middletown, 187 N. Y. 37; Curry v. City of Buffalo, 135 id. 366, 370.)

The reason for adhering somewhat strictly to this requirement is because of its importance to the city to enable it to make the investigation. Itls not of so much interest to the municipality when the action may be commenced, -but it should have an early opportunity to investigate the nature of the claim against it.

The Legislature which created the cause of action imposed the requirement, and a substantial compliance with it is a requisite to the right to recover, unless it has been waived. Passing this question, however, we are of the opinion that the necessity of presenting the notice of claim within thirty days has been waived by the defendant. .

Section 489 of the defendant’s revised charter (Laws of 1904, chap. 300) makes it “ the duty of the corporation counsel to cause all claims for personal injuries or damages to property to be thoroughly investigated.” The city judge is authorized to compel the attendance of witnesses by subpoena to “testify * * * in respect to such claim pending before the common council or referred to the com- , mittee; ” and he possesses authority to punish for contempt any one disobeying the subpoena or refusing to testify. (§ 489.)

The. complaint alleges “ that forty days and more have expired since the filing of said petition; that after this plaintiff had caused his verified claim to be served upon the Common Council of the City of Niagara Falls he was subpoenaed by a member of the defendant’s police force to appear before certain officers of said city, and in compliance with said subpoena did so appear and was then examined as to the cause of action and the injuries herein alleged, said examination being conducted by the City Attorney and each question and answer recorded.”

In pursuance of this authority, according to the allegations of the complaint, an investigation was instituted. The plaintiff himself was subpoenaed and examined as to the cause of the accident and the extent of his injuries.' ' If the notice was invalid the defendant knew it at the time the plaintiff was subpoenaed. It could not-trifle with the plaintiff by acting on the assumption that the claim possessed sufficient vitality to require his attendance before the city judge and be subjected to a cross-examination as to the substantive part of his claim, and when the action was commenced repudiate the demand because forsooth the notice was not served in time. This affirmative act on behalf of the defendant is incompatible with the position that the notice was void because not served within the time prescribed by the charter. The course of conduct adopted signified the purpose of the defendant to abandon ■ its right to insist that the notice was served too late-. When put to the trouble and expense of the examination on the merits of his claim the plaintiff was justified in believing that the defendant did not intend to ignore the notice altogether. The city could not follow a line of conduct in. recognition of the proper service of the notice, and then later on disclaim the service. It elected its mode of procedure and is bound by it.

In Forsyth v. City of Oswego (114 App. Div. 616) the plaintiff ■failed to file the notice of claim within three months, winch was the time specified in the city charter for the service of the notice. After the service of the notice .the plaintiff at the instance of the municipal authorities -was examined as to the merits of the claim. ' •This court held the investigation of the claim and the examination of the plaintiff was a waiver of the tardy service of the notice, saying at page 618: “ We think such action on the part of the defendant was a waiver by it of service of a notice in compliance with the statute and that .the defendant was estopped, after requiring the plaintiff -to be.examinéd as to the time and circumstances of the accident, from asserting that by his failure to serve a notice as required by the statute he could not maintain an action to recover damages for the injury sustained by him through the defendant’s negligence.”

To the same effect are Hamilton v. City of Buffalo (55 App. Div. 423) and Grothier v. N. Y. & Brooklyn Bridge (19 id. 586). The notice pertains to the remedy instead of to the substantive cause of action (Sheehy v. City of New York, 160 N. Y. 143), and the defendant may waive defects in the manner of service. The notice of claim was in the form of a verified petition. Whether it was sufficient to meet the requirements of the chartei as a notice we are unable to state. We will assume on this appeal, it was adequate, as is alleged in the complaint.

The interlocutory judgment should be reversed and the demurrer overruled.

Williams and Hobson, JJ., concurred; McLennan, P. J., voted for reversal on the ground that the statute did not commence to run until after the plaintiff became twenty-one years of age. (Crapo v. City of Syracuse, 183 N. Y. 395.). Kruse, J., dissented in an opinion.

Kruse, J.

(dissenting):

• I agree with Mr. Justice Spring that the provisions of the defendant’s charter requiring a claim against the defendant city, such as is set forth in the complaint, to be presented to the common council ■ within thirty days after the occurrence causing the damages or the happening of the accident, or the injury out of which the claim arose, is not merely a statute limiting the time for the commence- ' ment of the action, but a condition precedent to the maintenance of the action at all. " • •

I do not, however,'concur in the view that the. complaint shows that the provisions of- the statute have been" waived by the plaintiff. The fact that the plaintiff was subpoenaed by a member of the defendant’s police force to appear before certain officers of "the city not named,, and attend, and that "the plaintiff did appear and - the examination was conducted by the city attorney, does not necessarily show a waiver. There is no allegation in the complaint that the provisions of the charter-referred to were.waived by the defendant, and these facts do not even come within the provisions of the charter which provide for the examination of a claim.

Counsel for the plaintiff calls our attention to section 489 of the defendant’s revised charter,which permits the defendant to issue a subpoena to compel the attendance of persons to appeal and testify before "the corporation counsel in respect to claims for personal injuries, but there is no allegation in the complaint that the subpoena was issued by the defendant, or- that the plaintiff testified before the coloration counsel. Nor does it appear what the testimony of the plaintiff was, or the nature thereof, beyond the general statement that -he was examined as to the cause of .action and the injuries alleged in the complaint. •

Just what the precise nature of the proceeding was in which the plaintiff was examined by the corporation counsel does not appear. I think the allegation falls far short of a plea of waiver. Beyond tliat I am not impressed with the claim that the mere" act of the corporation counsel, in performing " a duty which the charter imposed upon him (if such was the nature of this proceeding), was a waiver upon, the part of the defendant of non-compliance by the plaintiff with this provision. I think the complaint showed neither •a substantial compliance nor a waiver of the" provisions of the defendant’s charter respecting the presentation of claims of this character. I vote for affirmance. ■

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to plead over upon payment of the costs of the demurrer and of this appeal.  