National Lead Co. v. City of New York

• Decision Date: 21 July 1930
• Docket Number: No. 323.,323.
• Citation: 43 F.2d 914
• Parties: NATIONAL LEAD CO. v. CITY OF NEW YORK et al.
• Court: U.S. Court of Appeals — Second Circuit

43 F.2d 914 (1930)

NATIONAL LEAD CO. v. CITY OF NEW YORK et al.

No. 323.

Circuit Court of Appeals, Second Circuit.

July 21, 1930.

Alexander & Green, of New York City (H. S. Ogden, of New York City, of counsel), for appellant National Lead Co.

Arthur J. W. Hilly, Corp. Counsel, of New York City (Joseph P. Reilly, of Brooklyn, N. Y., of counsel), for appellant City of New York.

Bandler, Haas & Collins, of New York City (John F. Collins and Harry Merwin, both of New York City, of counsel), for appellee.

Before L. HAND, CHASE, and MACK, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

On this appeal the negligence of the city may be taken for granted, as it relies wholly on the defense of want of notice of claim within the time provided by law. Section 261 of the Greater New York Charter (Laws N. Y. 1912, c. 452, amending Laws 1901, c. 466, § 261, as amended) provided that:

"No action or special proceeding, for any cause whatever, shall be prosecuted or maintained against the city of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding 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 presentment; and in the case of claims against said city, accruing after the passage of this act, for damages for injuries to real or personal property, or for the destruction thereof, alleged to have been sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by, said city, or any department, board, officer, agent or employee thereof, no action thereon shall be maintained against said city unless such action 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 when and place where the damages were incurred or sustained, together with a verified statement showing in detail the property alleged to have been damaged or destroyed, and the value thereof, shall have been filed with the comptroller of said city within six months after such cause of action shall have accrued."

Undoubtedly the notice was three days late if the cause of action accrued May 12, 1925, when the water all ran into the cellars. Bernreither v. City of New York, 123 App. Div. 294, 107 N. Y. S. 1006. See, also, Winter v. City of Niagara Falls, 190 N. Y. 198, 82 N. E. 1101, 123 Am. St. Rep. 540, 13 Ann. Cas. 486; Sheehy v. City of New York, 160 N. Y. 139, 54 N. E. 749.

As new damage occurred during the seven or eight days the water remained in the cellars, the notice was too late only if the cause of action accrued when the inflow of water from the main was stopped on May 12th. After the water was then turned off there was no new flooding of the premises, nor did the water remain in the cellars because the city did anything to keep it there. There was an entire absence of the maintenance of any structure, temporary or permanent, by the city, to hold the water in. It stayed there solely because the nature of the plaintiff's property prevented it running out. It is plain that an action accrued for whatever damage was done during the first three days as soon as that damage was done, and that was all more than six months before the notice.

We do not consider what would have been the result had the plaintiff not sued to recover for this part of its damage or attempted to waive all but the damage sustained within six months of the notice at the trial. It did neither, and nothing is before us but questions growing out of the claim it made in the suit it brought.

There was one act of negligence in laying the main with a faulty pipe section, one consequent breaking of the pipe, and one inflow of water resulting in immediate damage which gave rise to a cause of action that accrued at once. The decisive feature is that that cause of action has been made the basis of this suit against the city and all damage resulting from the one flooding is traceable directly to the one break. The plaintiff had a single right of action for all damage caused by the one act of negligence, and it accrued when the damage began, instead of, as the plaintiff seems to believe, when the damage was completely done. If no right of action accrues when some damage is done, but only when all the damage has been suffered, all a defendant would need to show in defense would be that suit was brought while the plaintiff continued to suffer damage or that future damages would be sustained. On such a theory a defendant would be immune from suit while the harmful effect...