Murphy v. Village of Ft. Edward

• Decision Date: 12 January 1915
• Citation: 107 N.E. 716,213 N.Y. 397
• Parties: MURPHY v. VILLAGE OF FT. EDWARD.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 397

107 N.E. 716

MURPHY

v.VILLAGE OF FT. EDWARD.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Celia Murphy, an infant, by Mary Ann Murphy, her guardian ad litem, against the Village of Ft. Edward. From a judgment of the Appellate Division (159 App. Div. 471,144 N. Y. Supp. 451) reversing an order of the trial term setting aside a verdict of a jury in favor of plaintiff, and judgment in favor of defendant, and reinstating the verdict and adjudging a recovery for plaintiff, defendant appeals. Affirmed.

Wyman S. Bascom, of Ft. Edward, for appellant.

Erskine C. Rogers, of Hudson Falls, for respondent.

COLLIN, J.

[1] The action is for negligence. The infant plaintiff was, when injured on September 28, 1910, five years old. The question presented arises from a failure of the plaintiff to comply with section 341 of the General Village Law (Laws of 1909, c. 64; Consol. Laws, c. 64). The language of the section is:

‘No action shall be maintained against the village for damages for a personal injury or an injury to property alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employé thereof, unless the same shall be commenced within one year after the cause of action therefor shall have accrued nor unless a written verified statement of the nature of the claim and of the time and place at which such injury is alleged to have been received shall have been filed with the village clerk within sixty days after the cause of action shall have accrued. An action on such a claim shall not be commenced until the expiration of thirty days after it is presented.’

A written verified statement under the complying with the requirements of the section, except the requirement that it be filed within 60 days after the cause of action shall have accrued, was filed August 5, 1912; that is, about 23 months after the injury. The appellant presents the sole question (duly preserved by an exception to the admission of the statement in evidence) whether or not the failure to file the statement within 60 days after the injury is a bar to the maintenance of the action.

The plaintiff was defeated in a former action against the Delaware & Hudson Company to recover for this injury. See 151 App. Div. 351,135 N. Y. Supp. 509. Her mother, her guardian ad litem in this action, was appointed her guardian ad litem for the purposes of that action October 20, 1910. That action was commenced November 15, 1910. Her mother was appointed guardian ad litem for the purposes of this action August 3, 1912. This action was commenced October 14, 1912.

In Winter v. City of Niagara Falls, 190 N. Y. 198, 202,82 N. E. 1101, 1102 (123 Am. St. Rep. 540,13 Ann. Cas. 486), the statutory provision under consideration was:

‘All claims for damages founded upon alleged negligence of the city shall be presented to the common council, in writing, within 30 days after the occurrence causing such damages; * * * the omission to present any claim in the manner, or within the time, in this section provided shall be a bar to an action against the city therefor.’

Judge Gray, writing for the court, said:

‘The provision, therefore, became an essential part of a complainant's cause of action, and compliance with its requirement was a fact to be alleged and proved, like any other condition precedent to the existence of an obligation. Reining v. City of Buffalo, 102 N. Y. 308 ;Curry v. City of Buffalo, 135 N. Y. 366 ;MacMullen v. City of Middletown, 187 N. Y. 37 [79 N. E. 863,11 L. R. A. (N. S.) 391] . Municipal liability for injuries is a matter that is within the control of the Legislature, and when it is enacted what that liability shall be, and the conditions upon which it may be enforced are prescribed, the statutory provisions are controlling, upon the subject. To require the presentation of a claim within a specified time is quite a reasonable provision, inasmuch as thereby the municipality is afforded a measure of protection against stale claims, or the possible connivance of corrupt officials. It permitted an investigation into the occurrence to be had at a time when the evidence relating to it might more readily be collected. The provision is not so rigid as to be beyond a construction, which admits of a substantial compliance with its requirement, or of an excuse for delay in performance, when caused by the inability of the injured person to comply. Walden v. City of Jamestown, 178 N. Y. 213 .’

The language of section 341, ‘No action shall be maintained * * * unless a written verified statement * * * shall have been filed with the village clerk within 60 days after the cause of action shall have accrued,’ is the equivalent of the statutory language considered by Judge Gray, and such conclusion the respondent here does not oppose. The respondent does, however, asserting an analogy between an infant and an administrator of an estate, urge that the plaintiff's cause of action did not accrue until the appointment of her guardian ad litem for the purpose of bringing this action, even as an administrator's cause of action does not accrue until his appointment. Crapo v. City of Syracuse, 183 N. Y. 395, 76 N. E. 465. It seems to me the distinction between the two cases is quite clear and certain . The right of action of an infant at its origination is and remains in the infant, who is, of course, in being. Infancy does not incapacitate the infant from bringing the action. The infant is the real party, although he sues by the guardian ad litem. Such fact is recognized and declared in the Code of Civil Procedure, § 468:

‘Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy.’

The guardian ad litem manages the suit for the infant and protects his interests, but is not, and the infant is, the real party to the action.

The decision in Winter v. City of Niagara Falls, 190 N. Y. 198, 82 N. E. 1101,123 Am. St. Rep. 540,13 Ann. Cas. 486, above cited, may be deemed an authority overruling the respondent's assertion in that it held, in effect, that infancy, in and of itself, did not prevent the operation of the requirement that the notice or statement be filed.

The requirement of the statute, however, as Judge Gray wrote, is not absolute and unyielding. Judge Gray further said:

‘The question was well discussed below, and I think it needs no further discussion here.’

The court below said:

‘No rigid rule can be established. If an infant of 10 years is injured, with no one capable of presenting a claim to the common council, the strict limitation of the...