Forsyth v. City of Oswego

• Decision Date: 31 March 1908
• Citation: 191 N.Y. 441,84 N.E. 392
• Parties: FORSYTH v. CITY OF OSWEGO.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 441

84 N.E. 392

FORSYTH

v.CITY OF OSWEGO.

Court of Appeals of New York.

March 31, 1908.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Joseph Forsyth against the city of Oswego. From a judgment of the Appellate Division (114 App. Div. 616,99 N. Y. Supp. 1022) affirming a judgment for plaintiff, defendant appeals. Reversed.

Francis D. Culkin, for appellant.

F. T. Cahill, for respondent.

WERNER, J.

The plaintiff was injured by being thrown from a wagon while driving upon one of the defendant's public streets. He brought his action upon a complaint containing allegations of negligence against the defendant in its maintenance of the particular street, and asseverating plaintiff's freedom from contributory negligence. He recovered a verdict, and the judgment entered upon it has been affirmed by a divided Appellate Division. We have examined the record, and are satisfied that the judgment is not without the support of evidence. Thus we are precluded from disturbing the judgment upon the merits. The further question presented for our consideration is whether there are errors in the record of such importance as to demand a reversal.

The defendant is a municipal corporation, and its charter provides that: ‘All claims against the city for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street * * * of the city, or from negligence of the city authorities in respect to any such street, * * * shall, within three months after the happening of such damage or injury, be presented to the common council by a writing signed by the claimant, and properly verified, describing the time, place, cause and extent of the damage or injury. The omission to present such claim as aforesaid within said three months shall be a bar to any action or proceeding therefor against the city.’ Laws 1895, p. 733, c. 394, § 345.

The plaintiff was injured on the 24th day of December, 1902. A statement of his claim was served upon the defendant on the 18th day of May, 1903. As this was four months and 24 days after the accident, the plaintiff's claim is clearly barred unless his failure to comply with the requirements of the defendant's charter has been properly excused or waived. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792. The plaintiff's complaint sets forth that as a result of the injuries sustained by him on the 24th day of December, 1902, he was mentally and physically incapacitated from filing his claim until the 18th day of May, 1903, when he filed it. There is evidence in the record which tends to sustain this allegation. Thus the question which should have been submitted to the jury upon that branch of the case was, whether the plaintiff filed his claim within a reasonable time after the lapse of the period for filing named in the charter. That period was, as we have seen, limited to three months after the happening of the accident, and the plaintiff's claim was not filed until four months and 24 days had passed. In the absence of any explanation of plaintiff's delay in this respect, the direction of the statute would have been conclusive and final. There was an explanation, however, and it was for the jury to say whether it was credible and satisfactory. If the plaintiff was, as he claimed, physically and mentally unable to prepare and present his claim, or to give directions for its preparation and presentation during the whole of the three months within which he was required by the defendant's charter to present it, then he was entitled to a reasonable additional time in which to comply with the charter in that regard. This is because the law does not seek to compel that which is impossible. Walden v. City of Jamestown, 178 N. Y. 217, 70 N. E. 466. Upon the evidence in the record the learned trial court should have instructed the jury that if the plaintiff, by reason of the injuries for which he seeks to hold the defendant responsible, was incapacitated from presenting his claim within the period prescribed by the defendant's charter, he was...