Casey v. City of New York

• Decision Date: 01 February 1916
• Citation: 111 N.E. 764,217 N.Y. 192
• Parties: CASEY v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 192

111 N.E. 764

CASEY

v.CITY OF NEW YORK.

Court of Appeals of New York.

Feb. 1, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Margaret Casey against the City of New York. From a judgment for the defendant (157 App. Div. 905, 142 N.Y. Supp. 1111), the plaintiff appeals. Judgment modified.

The action was brought to recover damages for personal injuries sustained by plaintiff as the result of a fall on defendant's sidewalk.

Leonard F. Fish, of New York City, for appellant.

Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.

POUND, J.

[1] The court below dismissed the complaint upon the merits on the ground that the plaintiff had proved no negligence on the part of the defendant, under the authority of Lalor v. City of New York, 208 N.Y. 431, 102 N.E. 558. As Seabury, J., pointed out in Faber v. City of New York, 213 N.Y. 411, 107 N.E. 756, the complaint was dismissed in the Lalor Case because a disinterested witness called on behalf of the plaintiff testified to actual and accurate measurements of the hole into which the plaintiff in that case stepped, and thus made it clear that the defendant was not negligent. There the plaintiff was sworn out of court by her own witness, but in this case the accurate measurements were testified to by one of defendant's witnesses, and we cannot dismiss the complaint for the reason assigned without disregarding the evidence of plaintiff's witnesses, which we may not do. The evidence presented a question of fact on the issue of defendant's negligence, and the dismissal of the complaint on that ground was error. The judgment dismissing the complaint must, however, be sustained on other grounds.

[2] Defendant questions the sufficiency of the notice of intention to sue which plaintiff filed under chapter 572, Laws of 1886, which provides that no action to recover damages against any city of the state, having a population of 50,000 or over, on the ground of the negligence of the city's officers or agents, can be maintained, “unless notice of the intention to commence such action and of the time and place at which the injuries 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.” Section 1.

The notice states that this accident happened at a “hole in the pavement on the public highway, at about Washington street, near Vestry street, in the borough of Manhattan, in the city of New York.” This notice is so vague and indefinite as to be almost meaningless. Where is “at about Washington street, near Vestry”? Is it in Washington street? If so, on which side of Washington street and on which side of Vestry street, and how near to Vestry street? The word “near” means “not distant from,” but the term is wholly relative, and locates nothing with any degree of precision.

On the trial the place of the accident was fixed by plaintiff's witnesses as being in front of No. 419, on the east side of Washington street, which was three numbers south of Vestry street. No one could from the notice locate the place with accuracy, and plaintiff is wholly without excuse for this defect. Purdy v. City of New York, 193 N.Y. 521, 524, 86 N.E. 560.

[3] The city had no difficulty in finding the spot where plaintiff fell and making its measurements soon after the accident, and, as the first purpose of the statute is to enable the city to conduct its investigations intelligently, it is urged that the notice, vague as it is, is definite enough to serve that purpose in this case. Beyer v. City of North Tonawanda, 183 N.Y. 838, 76 N.E. 214. The city is entitled to know, not alone where the accident in fact happened, but also where the injured person claims that it happened. The two points are not necessarily and invariably identical, and the rule requiring a particular location to be stated in the notice should not be greatly relaxed merely because the conjectures of the city officials as to its meaning prove accurate.

“Given a case in which there were several * * * such places as were referred to in the notice, the authorities might be deceived and misled, rather than informed, by such a notice.” Werner, J., in Purdy Case, supra.

[4] Plaintiff has not only failed to prove the service of a proper notice, but has also failed to plead and prove another fact essential to sustain the judgment of the trial court.

Section 261 of the Greater New York Charter provides that:

“No action * * * shall be prosecuted or maintained against the city of New York, unless it shall appear by and as an allegation in the complaint * * * that at least thirty days have elapsed since the demand, claim or claims upon which such action * * * is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such...