Curry v. City of Buffalo

• Decision Date: 11 October 1892
• Parties: CURRY v. CITY OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 366

32 N.E. 80

CURRY

v.CITY OF BUFFALO.

Court of Appeals of New York.

Oct. 11, 1892.

Appeal from supreme court, general term, fifth department.

Action by Mary Curry against the city of Buffalo for personal injuries caused by a defective sidewalk. From a judgment of the general term (10 N. Y. Supp. 392) affirming a judgment of nonsuit, plaintiff appeals. Affirmed.

Adelbert Moot, for appellant.

Philip A. Laing, for respondent.

EARL, C. J.

The plaintiff brought this action to recover damages for personal injuries received by her from falling upon a sidewalk, in reference to which she charged the defendant with negligence. The plaintiff was nonsuited at the trial solely upon the ground that she had not complied with section 1 of chapter 572 of the Laws of 1886, passed June 4th of that year, by giving the notice there required of her intention to commence the action. She received her injuries on the 18th day of December, [135 N.Y. 368]1887, and on the 29th day of May thereafter she delivered to the city clerk and the comptroller a petition addressed to the common council, in which she stated the nature of her injuries, and when, where, and how they were received; that they were caused by the bad condition of the sidewalk negligently left by the city out of repair and in a dangerous condition; and that her damages were $5,000; and she prayed for an order for that sum. The presentation of her claim to the common council by her petition was a compliance with section 7 of title 3 of chapter 519 of the Laws of 1870, as amended by section 8 of chapter 479 of the Laws of 1886, passed May 27th of that year, which section is as follows: ‘It [the common council] shall audit all claims against the city, but no unliquidated claims shall be received for audit unless made out in detail, specifying if for labor or services, the time when, the place where, by whom, and under whose direction, and by what authority, performed; if for merchandise, material, or other articles furnished, the items thereof, by whom ordered, and when and to whom delivered; and if for damages for wrong or injury, when, where, and how occasioned; nor unless accompanied by an affidavit that the claim and the items and the specifications thereof are in all respects just and correct, and that no payments have been made, and that no set-offs exist except those stated. No action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council for audit in the manner and form aforesaid. The common council, before auditing any such claim, shall refer it to the auditor. If such claim shall not be made out or verified as above required, the common council may, within thirty days after its presentation, refuse on that ground to audit it. All actions brought against the city to recover damages for personal injuries caused by negligence shall be commenced within one year from the time of receiving the injuries.’ The action was commenced July 23, 1888, and after that section 7 was again amended, and re-enacted, as amended, in chapter 318 of the Laws of 1889. The amendment required claims for a wrong or injury to be presented within six months after the wrong or injury occurred. As the amendment was after the commencement of this action, it is in no way material to be now considered. The purpose of section 7 was to regulate the powers and duties of the common council in the audit, allowance, and payment of claims against the city; and the main features of the section, with...