Sehl v. City of Syracuse

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 [545] (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 [546] 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, [547] 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.