Reinig v. City of Buffalo

Citation102 N.Y. 308,6 N.E. 792
PartiesREINIG and others v. CITY OF BUFFALO, impleaded, etc.
Decision Date27 April 1886
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from judgment of general term of superior court of Buffalo, sustaining the demurrer interposed by the defendant.

David F. Day, for appellants, John Reinig and others.

W. F. Worthington, for respondent, City of Buffalo, impleaded, etc.

RUGER, C. J.

The sole question presented by this appeal is whether the complaint, in an action against the city of Buffalo, should contain an allegation of the previous presentation of the claim declared on to its common council, and that 40 days had expired since such presentation. The clause of the city charter requiring such a proceeding reads as follows: ‘No action to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council in the manner and form provided.’ Section 7, tit. 3, c. 519, Laws 1870. The inquiry is whether this provision was intended to operate as a condition precedent to the commencement of an action, or simply to furnish a defense to the city in case of an omission to make such demand. We think the plain language of the statute excludes any doubt on the subject. It absolutely forbids the prosecution of any action until the proper demand has been made. It attaches to all actions whatsoever, and by force of the statute becomes an essential part of the cause of action, to be alleged and proved as any other material fact. It does not purport to give the city a defense dependent upon an election to use it, but expressly forbids the institution of any suit until the preliminary requirements have been complied with. The plain intent of the requirement was to protect the city from the costs, trouble, and annoyance of legal proceedings, unless, after a full and fair opportunity to investigate and pay the claim, if deemed best, they declined to do so.

It is not, in such a case, necessary that the thing required should constitute one of the elements of a common-law action; for, if the legislature have made even a step in their remedy a condition of its prosecution, it is essential, not only that it should be taken, but that it should be affirmatively alleged and proved by the plaintiff. It is competent for them to attach a condition to the maintenance of a common-law action, as well as one created by statute; and when they have done so, its averment and proof cannot safely be omitted. The court, in Nagel v. City of Buffalo, 34 Hun, 1, in considering the statute in question, seemed to think its requirement was in the nature of a condition subsequent or proviso, having no necessary connection with the proper statement of a cause of action; but we think they erred in their conception of the nature of the provision. Neither its language nor its object is analogous to those provisions authorizing the defense of the statute of limitations, or other special or particular defenses constituting conditions subsequent which may or may not occur in particular cases, and must therefore be averred to authorize the court to take cognizance of them. Here the requirement exists independent of proof in every case, and is made to precede the institution of any suit whatever. Its performance cannot for any purpose be presumed, but must, to be availed of, be alleged and proved. The language is ‘that no action’ ‘shall be brought’ until, etc., and constitutes an express prohibition against the action until performance of the condition. A non-compliance with this requirement can be raised by the defendant at any stage of the action when it is called upon to act in the case.

The general rules of pleading applying to such cases are elementary, and hardly need citations to illustrate them.

It was said by Judge DENIO, in Howland v. Edmonds, 24 N. Y. 307:

‘If the defendant's liability depends upon the performance of a condition precedent, it is very plain that no action will lie until it be performed, and a request or demand of the thing claimed may and frequently does constitute such a condition to the obligation of the defendant. When that is the case, such demand before suit brought must be averred and proved to enable the plaintiff to maintain the action.’

The rule is also illustrated by the decision in Graham v. Scripture, 26 How. Pr. 501, where, in an action upon a judgment which was prohibited...

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