Dawson v. City of Troy

Learned, P. J. In Strohm v. Railroad Co., 96 N. Y. 305, the witness jhad testified that the plaintiff’s condition was very likely to be permanent. The objection was made to the words “very likely,” as speculative. The witness then said that such a patient might develop epilepsy, etc. The court held that this was too speculative. In the present case the doctor testified: “She will very likely recover in time. ” “It will probably take until a change of life. ” This testimony had just that character of probability which the court held to be improper in the Strohm Case. But, furthermore, the doctor did not testify that plaintiff would probably suffer any pain in the future, so that there was really no evidence that she would have further suffering. Whether or not the disease would be painful in the future was a matter, so far as evidence went, of conjecture. But the court charged, against defendant’s request and exception, that, if the jury believed there would be future bodily pain, they might allow for it. The plaintiff herself testified as to her present pain and suffering; but, without evidence that such pain and suffering would continue, we think the jury could not, under the ease cited, allow for it. The plaintiff testified that, at the time of the injury, she was working in a mill, and always collected her wages, and the rate of such wages; that she had no property except what she earned. This seems to be all the evidence as to her right to her wages. The court charged (and defendant excepted) that if she bad been allowed to make bargains in her own behalf for her labor and services, and had been accustomed to receive and appropriate the compensation therefor as she saw fit, with the approval and consent of her husband, then she could recover for any loss, etc. It seems to us that there was nothing in the case to justify the supposition, and that the doctrine is not in accordance with Filer v. Railroad Co., 49 N. Y. 47. There certainly is no [138] evidence, in the language of that ease, that she was carrying on any business, trade, or labor upon or for her sole and separate account. That she collected her wages is quite consistent with her collecting them for her husband. I do not feel willing to disregard the requirements of chapter 572, Laws 1886. The statute says: “No action * * * shall be maintained * * * unless notice of the intention to commence such action * * * shall have-been filed with the counsel to the corporation * * * within six months, ” etc. The question is, was the commencement of the former action for this-same cause, by service of summons and complaint on the mayor, a compliance with this statute? The service of that complaint was not notice of an intention to commence that action, because it was itself the commencement. It was not notice of an intention to commence this action, because the plaintiff had then and could have had no such intention. To construe the service of that former summons and complaint as a filing of a notice of intention with the corporation counsel, under that statute, seems to me to be an evasion such as courts sometimes make to relieve a party from a mistake; and such as always produces mischief in the end, by making the law uncertain. The plaintiff did not comply with the statute, and did not intend to comply with the-statute,—probably overlooked it. ' She commenced her action without having filed such notice of intention; and now she asks the court, out of sympathy for her, to say that a complaint, which was not, and could not have been, a. notice of intention to commence this present action, was such notice, and that a paper served on the mayor was a paper filed with the corporation counsel. I do not think our sympathy should lead us to disregard the plain words of the statute. We might as well say that, if the corporation counsel had heard in the street that the plaintiff was about to commence this action, such hearing would relieve her from the requirements of that statute. It would give them notice enough to make the necessary investigation, as said in Meyer v. Mayor, 12 N. Y. St. Rep. 675. The statute is plain, and it is best to adhere-to it. Judgment reversed, and new trial granted; costs to abide event. Ingalls, J. concur in the result, on the last ground.