
    Henry W. Watts, Appellant, v. The City of New York, Respondent.
    Second Department,
    June 11, 1909.
    . New York city — injury to personal property — notice of intention to sue.
    A complaint in an action against the city Of New York for injury to personal property which fails to allege the filing with the comptroller of a notice of an intention to commence the action of facts constituting a waiver of such notice is fatally defective.
    Where judgment in favor of the defendant has hpen rendered on such a com-' . plaint the Municipal Court is without jurisdiction to vacate and set aside the same and to amend'the complaint by inserting the necessary allegation.
    Appeal, by the plaintiff, Henry W. Watts, from a judgment of ' the Municipal Court of the city of New York, rendered on January ■ 11,' 1909, in favor of the defendant, dismissing the complaint, and ■ ■ also from an order denying the plaintiff’s motion to vacate and set aside said judgment and for a new trial.
    
      Rufus O. Catlin, for the appellant.
    
      James D. Bell [Daniel D. Whitney, Jr., with him on the brief], for the respondent.
   Rich, J.:

In 1907, section 261 of the. Greater New York charter was amended by adding a provision that in cases of claims against the city for damage for injury to personal property, or the destruction thereof, occasioned by' the' negligence of the city, no action therefor should be maintained unless notice of- an intention to commence such action, together with other details, “ shall have been tiled witli the comptroller^ of said city within six months after such cause of action shall have accrued.” (Laws of 1901, chap. 466, § 261, as amd. by Laws of 1906, chap. 550, and Laws of 1907, chap. 677.) This amendment became operative prior to.the occurrence upon ' which the plaintiff bases this action, which is brought to recover damages for the killing of a horse and partial destruction of a wagon, owned by plaintiff, through defendant’s alleged negligence. The complaint is oral, and is stated to be “damages to personal property.” When the case came on for trial counsel for the defendant moved to dismiss the complaint on the ground, among others, that it was not alleged and did not' appear that the notice of intention to commence the action had been served upon the comptroller. The plaintiff was then permitted to amend his complaint by alleging that a notice of his claim was served upon the comptroller within six months after the cause of action accrued; that more than thirty days had elapsed since such tiling, and the claim had not been paid; that a notice of intention to sue was served upon the corporation counsel on March 10, 1908, and that the plaintiff appeared before the comptroller and testified in detail to the damages he had sustained. Counsel for the defendant then moved to dismiss upon the ground that no cause of action was stated in the complaint as amended, and the motion was granted. Subsequently the plaintiff moved, under the provisions of section 254 of the Municipal Court Act, to vacate and set aside the judgment, and to amend the complaint by inserting an allegation tliat,: within the time limited by the statute, notice of ah intention to commence this action was served upon the comptroller; this motion was denied upon the ground that the court was without authority to grant the relief. From the judgment and order the plaintiff appeals.

The allegation of the filing of the claim with the comptroller and the personal examination of the plaintiff were required by-the charter before the amendment in 1907, and it is plainly apparent that an additional condition precedent to maintaining an action in this class of cases was intended by the Legislature. After the amendment, the complaint was fatally defective because of the omission to allege service of the notice on. the - comptroller; this was a condition precedent to maintaining the action, and must be averred, or a cause of action is not alleged. (Krall v. City of New York, 44 App. Div. 259; Gmaehle v. Rosenberg, 80 id. 541; Curry v. City of Buffalo, 135 N. Y. 366.) The contention that the filing of the notice with the corporation counsel met the requirements of the statute is without merit in the absence of proof that such notice was acted upon by the comptroller (Sheehy v. City of New York, 160 N. Y. 139), and the contention that there was a waiver of such requirement because' of the examination of the plaintiff before the comptroller cannot be sustained. In Winter v. City of Niagara Falls (119 App. Div. 586) the notice was- filed, with the proper officer, but not until after the timé limited therefor by the statute; the notice was retained,' however, and the claimant was' examined. It was. held that there Was an election of the mode of procedure by the defendant which operated as a waiver. This decision Was reversed by-the Court of Appeals upon the ground that, if it was within the power of- a municipality to waive the requirement of the statute, which was not decided,-the complaint to be good must allege either an express wai ver, or facts which. taken together constitute a waiver, oil the part of the' defendant. (190 N. Y. 198.)

The motion to vacate and set -aside the judgment was properly denied. The court was without jurisdiction ■ to grant the relief sought, and the judgment and order of the, Municipal Court must he .affirmed, with costs. '

Present — Hirschberg, P. J., .Woodward, Burr, Rich and Miller, JJ.

. Judgment and order of the Municipal Court unanimously affirmed, with costs. . - 
      
       Laws of 1902, chap. 580.— [Rep,
     