Ponsrok v. City of Yonkers

• Decision Date: 03 June 1930
• Citation: 254 N.Y. 91,171 N.E. 917
• Parties: PONSROK v. CITY OF YONKERS.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 91

171 N.E. 917

PONSROK

v.CITY OF YONKERS.

Court of Appeals of New York.

June 3, 1930.

Action by Agnes Ponsrok against the City of Yonkers. From a judgment of the Appellate Division (228 App. Div. 642, 237 N. Y. S. 872), reversing as matter of law an order of the county court denying defendant's motion for judgment on the pleadings and granting judgment dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Stephen R. J. Roach, of White Plains, for appellant.

Harry J. Laragh, Corp. Counsel, of Yonkers (Vincent C. De Carlo, of Yonkers, of counsel), for respondent.

POUND, J.

The case comes up on a motion for judgment on the pleadings. The complaint alleges that the defendant negligently constructed a city sewer so that the same became obstructed, causing its contents to back up and flood the lower floor of plaintiff's premises to plaintiff's damage $2,000, and that notice of claim and notice of intention to commence an action thereon were given in accordance with the provisions of section 244 of the Second Class Cities Law (Consol. Laws, c. 53).

It is stipulated that the notice of claim shall be considered part of the complaint. The notice is in proper form except as to its verification. It is signed by the claimant. The affidavit of verification begins: ‘Agnes Ponsrok, being duly sworn, deposes and says.’ Then follows the usual affidavit of verification, which is not signed by the claimant but is subscribed by William F. Fennell, who attaches alongside the jurat his seal notary public. The question is whether the claim is properly verified.

Second Class Cities Law, section 244, provides that the city shall not be liable in a civil action for damages to person or property unless a claim therefor in writing, verified by the oath of the claimant, shall be presented as therein indicated. Municipal liability for injuries is a matter which is within the control of the Legislature, and when it declares upon what such liability shall be predicated, the statutory provisions are controlling. Winter v. City of Niagara Falls, 190 N. Y. 198, 203,82 N. E. 1101,123 Am. St. Rep. 540, 13 Am. Cas. 486; Rogers v. Village of Port Chester, 234 N. Y. 182, 185, 137 N. E. 19. If the notice of claim does not comply with the statutory requirements, if it is not a verified notice of claim, the complaint was properly dismissed. No other form of notice is sufficient.

While the constitutional classification of cities into cities of the first, second, and third class in accordance with their population (article 12, § 2) no longer exists, under the Home Rule Amendments adopted November 6, 1923, the Second Class Cities Law is continued in force (article 12, § 7). The city of Yonkers comes under the act. The court must therefore construe the words ‘verified by the oath of the claimant’ in order to determine whether the action may be maintained. If the ignorance and incompetency of the notary in failing to have the affidavit of verification subscribed by the claimant has resulted in a mere technical deviation from the classic form of an affidavit, the irregularity might be overlooked. The defect is, however, one of substance. The words ‘verified by the oath of the claimant’ import the usual affidavit of verification, such as is prescribed by rules 99, 100 of the Rules of Civil Practice for the verification of pleadings. Such an affidavit should be subscribed by the affiant. No statute requires it, but established practice compels it. True, the great authority of Chief Justice Shaw is on the other side. In Farrar v. Parker, 7 Metc. (Mass.) 43, it was held that as the statute does not require the oath to be subscribed, subscription is not necessary to its validity. Abundant authority may be found in other jurisdictions for this holding. 2 Corpus Juris, 357, § 90, note 33.

In New York the rule is otherwise. It was held in the Supreme Court of this state in the early days, without giving reasons for the ruling, that the writing is an affidavit in law, though not signed by the deponent, if his name appears in the body of it and it is duly sworn to. In equity the rule was different. Chancellor...