Russo v. City of New York

• Decision Date: 09 February 1932
• Citation: 179 N.E. 762,258 N.Y. 344
• Parties: RUSSO v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 344

179 N.E. 762

RUSSO

v.CITY OF NEW YORK.

Court of Appeals of New York.

Feb. 9, 1932.

Action by Antoinette Frele Russo, an infant, by Carmine Frele, her guardian ad litem, against the City of New York, From judgment of the Appellate Division (233 App. Div. 669, 249 N. Y. S. 871), affirming a judgment of Trial Term upon the verdict of a jury in favor of plaintiff, defendant appeals by permission of the Court of Appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Arthur J. W. Hilly, Corp. Counsel, of New York City (J. Joseph Lilly, Charles E. Ramsgate, and Edward A. Gobel, all of New York City, of counsel), for appellant.

David C. Broderick, of New York City, for respondent.

POUND, J.

The jury has found that the infant plaintiff was seriously injured on July 24, 1925, through the negligence of the defendant, the City of New York, when she was fourteen years of age. The question of law is whether she has lost her right to recover by reason of noncompliance with the provisions of sections 149 and 261 of the Greater New York Charter (Laws of 1901, c. 466, as amended by Laws 1912, c. 452; Laws 1917, c. 401, and Laws 1923, c. 667) and of Laws of 1886, chapter 572, relative to filing notice of claim and notice of intention to sue, appearance before the comptroller for examination and commencement of suit, and of the provisions of the statute of limitations. Civil Practice Act, §§ 23, 49, 60, 201.

These statutes have to do, first, with the right to maintain a cause of action against the city of New York. They require the service on the corporation counsel of notice of intention to sue within six months and the commencement of the action within one year after the cause of action accrued; the presentation of the claim to the comptroller of the city for adjustment and the appearance of the claimant before the comptroller on notice for examination touching the claim. In this case notice of claim and intention to sue were duly served on the defendant's comptroller and corporation counsel. She was thereafter duly notified to appear for examination by the defendant's comptroller. She made default in appearing and her default was noted on October 7, 1925.

On October 24, 1925, she began an action by her guardian ad litem against the city which was voluntarily discontinued by her because of such default on December 7, 1927, when it was about to be reached for trial.

On December 13, 1927, she served a second notice of claim and of intention to sue and appeared before the comptroller for examination, and on August 28, 1928, she began the present action. This was over three years and one month after the accident. While the second notices are set forth in the complaint as the basis of this action, the fact that the earlier notices were served was not questioned by the defendant on the trial.

The defendant moved to dismiss the complaint for failure to comply with the provisions above referred to, including the general provisions of the statute of limitations.

The trial justice left to the jury the question whether plaintiff was physically and mentally able to comprehend and comply with the statutes. One fact is obvious, that she did literally comply with such statutes so far as notice of claim and intention to sue is concerned. It is necessary for her only to excuse her failure to appear for examination before the comptroller. Her counsel on the trial conceded that she was duly notified to appear and was in default. The question was properly presented to the jury. Murphy v. Village of Fort Edward, 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040. There are three periods of infancy to be considered in this connection. As matter of law the strict requirements of the statute are not enforced against an immature infant of approximately ten years or less. They are enforced against an infant of riper years, of ordinary physical and mental capacity. Between these two periods lies a middle period where the infant may or may not be held to the provisions of the statute under the facts of the case as the jury may determine. No exact limitation of these periods by age can safely be made and the classification may depend to some extent on the facts in...