Curry v. City of Buffalo

Corbett, J. About the 18th day of December, 1887, the plaintiff received an injury by falling upon the defendant’s sidewalk. The plaintiff claims that the city was negligent, and that she was free from negligence. The city put in issue the material allegations in the complaint. The action was tried before a justice of this court and a jury on the 24th day of February, 1890. At the close of the evidence, which tended to prove the plaintiff’s position, the defendant moved for a nonsuit upon the ground that the plaintiff had failed to comply with chapter 572 of the Laws of 1886. The plaintiff objected to the nonsuit, which was granted by the court. The plaintiff excepted, and the court ordered the exceptions to be heard here. Section 7, tit. 3, of the charter of the city of Buffalo, provides, among other things, that no unliquidated claim for damages for wronger injury should be received for audit unless the claim is presented, stating how and where it happened, and that no payments bad been made. It further provides that no action to enforce any such claim shall be brouglit until the expiration of 40 days after it shall have been presented to the common council for audit in the manner provided in that act. On the 9th day of May, 1888, the plaintiff presented to the common council a petition directed to that body which describes the injury received, alleges negligence on the part of the city, claims damages to the amount of $5,000, and closes as follows: “Wherefore, your petitioner prays that an order be drawn upon the proper fund for the sum of five thousand dollars in favor of your petitioner, to compensate her for her injuries and damages sustained in the premises.” This petition was signed by the plaintiff, and verified. On the 4th day of June, 1886, chapter 572 of the Session Laws of that year went into effect. It provides as follows: “Section 1. No action against the mayor, aldermen, and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen, and commonalty, or of any department, board, officer, agent, or employe of said corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and -place at which the inj uries were received, shall have been filed with the counsel to the corporation, or other proper law-officer thereof, within six months after such cause of action shall have accrued. Sec. 2. Nothing in this statute contained shall be construed or held to give or confer any right of action against said corporation for any cause for which said right of action would not have existed had this act not been passed, nor to affect any right of action which may exist against such corporation. Sec. 3. This act shall take effect immediately. ” [394] The plaintiff’s contention is that this act has no application to the city of Buffalo, mainly because the defendant was always known and designated by that name, and that the act was only intended to apply to a city designated by the terms, “the mayor, aldermen, and commonalty.” The title of chapter 572 is, “An act in relation to certain actions against municipal corporations.” It is a familiar rule that the title to an act is often resorted to, to ascertain its scope and meaning. Brick v. Gannar, 36 Hun, 52; People v. McClave, 99 N. Y. 83-89, 1 N. E. Rep. 235. There is nothing inconsistent between this act and and the provisions of the defendant’s.charter. The object of the charter was to enable the city, through its common council, to have 40 days to examine and determine whether a claim should be audited before an action could be brought. Reining v. City of Buffalo, 102 N. Y. 308; 6 N. E. Rep. 792. But the act of 1886 required the notice specified in it to be delivered to the corporation counsel or the law-officer of the city. The provisions of the charter in no way conflict with the act of 1886. It appears by the ease that the application to the common council was denied on the recommendation of the corporation counsel. It requires no argument to prove that chapter 572, above quoted, was intended to apply to all municipal corporations in the state having a population of 50,000 or over. Dawson v. City of Troy, 2 N. Y. Supp. 137; Denair v. City of Brooklyn, 5 N. Y. Supp. 835. In the Dawson Case the prevailing and dissenting opinions agree that the act of 1886 applies, although the charter of the city of Troy requires a verified claim, the same as that of the city of Buffalo. The learned counsel for the appellant contends that the act of 1886 was made general to avoid a constitutional objection; in other words, that it was a successful device to defeat a constitutional provision by indirection. He also claims that many of the cities were originally designated by the terms, “the mayor, aldermen, and commonalty. ” That fact has no significance. Whatever terms were used, reference was had to the corporation. All redundant words have been eliminated in defining municipal corporations, except in the case of the city of Hew York. The only question to be determined here is whether the service of the notice on the common council of the city of Buffalo was a substantial compliance with the provisions of the act of 1886. It is not believed there is any difficulty or confusion attending the solution of this question. The petition served on the common council, manifestly, had reference to the charter. Hot only does the petition on its face so show, but the argument of the learned counsel for the appellant is to the effect that the charter alone affects Buffalo, and that the act of 1886 has no application. He does not argue that that act has been complied with, or attempted to be, but assumes that, if the act includes Buffalo, a nonsuit was properly directed. The purport and scope of the petition embodied a request to the common council to audit and pay his claim. The provision of the charter was to prevent the bringing of an action until the common council had 40 days’ time to examine it. The act of 1886 makes it a condition precedent that notice that an action will be brought must be served on the corporation counsel within six months, and the action must be brought within a year, after the accident. After notice to the common council, that body may neglect or delay action. The notice of a determination to bring suit may induce promptness. If otherwise, the city is in no condition to complain, for its common council has been served with the notice required by the charter, and the city attorney with that required by the act of 1886. Both of these requisites must be complied with to enable the injured party to maintain the action; but, when both are complied with, the case can be tried on the merits. There is no room for the claim that the act of 1886 has been substantially complied with. As already shown, the learned counsel for the appellant does not so argue. The trial justice made a proper disposition of the case, and a new trial should be de [395] mied. Motion for a new trial denied, and judgment ordered for the defendant on the nonsuit. Dwight, P. J., concurs.