Thomann v. City of Rochester

• Decision Date: 12 May 1931
• Citation: 256 N.Y. 165,176 N.E. 129
• Parties: THOMANN v. CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 165

176 N.E. 129

THOMANN

v.CITY OF ROCHESTER.

Court of Appeals of New York.

May 12, 1931.

Action by Jacob Thomann against the City of Rochester. From an order of the Appellate Division, Fourth Department (230 App. Div. 612, 245 N. Y. S. 680), reversing on the law a judgment of the Special Term so far as appealed from by the plaintiff, and granting a new trial on the question of damages only, the defendant appeals.

Order of the Appellate Division reversed, and judgment of the Special Term affirmed.

CRANE and HUBBS, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Clarence M. Platt, Corp. Counsel, of Rochester (Charles B. Forsyth, of Rochester, of counsel), for appellant.

Charles S. Gordon, of Rochester, for respondent.

CARDOZO, C. J.

The city of Rochester bought an abandoned quarry in 1924, and used it as a public dump. The plaintiff, a florist, occupied adjoining land for the uses of his business and also as a home. Noxious gases, smells, and vermin, coming from the dump, impaired the comfort of his family and brought damage to his bulbs and flowers. He stood by inactive for nearly four years, though the nuisance and the damage were obvious at once. At length, in July, 1928, he filed a notice of claim with the defendant's common council and also with its corporation counsel, and, later, a notice of intention to sue. This action was begun the following December. The relief demanded was an injunction and damages in the sum of $20,000. The trial court gave an injunction, but held that, under section 632 of the Rochester City Charter, the damages could go no farther back than a period of thirty days before the filing of the claim. The defendant acquiesced in the award of an injunction. The plaintiff appealed from the curtailment of the damages. The Appellate Division reversed the judgment to the extent appealed from, and granted a new trial. The ruling was that section 632 of the defendant's charter was not intended to apply to a cause of action for a continuing nuisance, and that the result of so extending it would be an unconstitutional impairment of vested rights of property. The case is now here, with a stipulation for judgment absolute, upon an appeal by the defendant.

Section 632 of the Rochester charter is quoted in the margin.¹ It is almost as comprehensiveas words could make it. By its express terms, the notice of claim must be presented whether the wrong be intermittent or continuing, and whether the remedy invoked be at law or in equity. If words so comprehensive do not reach the claim in suit, one is at a loss to imagine how any form of words would be sufficient to include it. Our ruling in Sammons v. City of Gloversville, 175 N. Y. 346, 67 N. E. 622, is in no wise to the contrary. We held of the statute there before us that it excluded causes of action for continuing wrongs and remedies in equity with damages merely incidental. The draftsman of the Rochester statute has taken a leaf from that decision. He has supplied what was there omitted. There is no gap in his catalogue of remedies and wrongs.

We find nothing unworkable in the requirement of notice as applied to the defendant's nuisance. The wrong was a continuing one, with damages not exhausted by a single act, but steadily recurring. That being so, successive causes of action accrued in favor of the injured landowner as long as the wrong continued within the period of prescription. Meruk v. City of New York, 223 N. Y. 271, 276,119 N. E. 571. He did not lose the right to some measure of relief by failing to give notice within the term of thirty days. What he lost was the right to include in the relief an award of damages antedating by more than thirty days the presentation of the notice in the statutory form. Meruk v. City of New York, supra.

The requirement is strict, but not so strict as to be arbitrary. A judgment against a municipal corporation must be paid out of the public purse. Raids by the unscrupulous will multiply apace if claims may be postponed till the injury is stale. The law does not condemn as arbitrary a classification of rights and remedies that is thus rooted in the public needs. Frasch v. City of New Ulm, 130 Minn. 41, 43, 153 N. W. 121, L. R. A. 1915E, 949;O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56;Sheehy v. City of New York, 160 N. Y. 139, 143,54 N. E. 749. The time allowed is short, yet adequate in general to enable diligence to move. Frasch v. City of New Ulm, supra, page 44 of 130 Minn., 153 N. W. 121. We leave open the question whether an extension of the term is to be implied where the wrong, though it has been done, or the damage, though it has been suffered, is unknown to the claimant. Cf. Williams v. Village of Port Chester, 72 App. Div. 505, 76 N. Y. S. 631;Id., 183 N. Y. 550, 76 N. E. 1116;Winter v. City of Niagara Falls, 190 N. Y. 198, 203,82 N. E. 1101,123 Am. St. Rep. 540,13 Ann. Cas. 486;Walden v. City of Jamestown, 178 N. Y. 213, 70 N. E. 466;Murphy v. Village of Ft. Edward, 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040. See, also, the cases collated in 31 A. L. R. 619, note. Nothing in this record suggests disability or ignorance. There being opportunity for knowledge and competence to act, the statute gives the rule to which obedience is due. A rule may not be slighted as invalid as to all because exceptional conditions may make it void as to a few. Williams v. Village of Port Chester, supra.

Opportunity there was, opportunity for the collection of the last dollar of the damage, if the plaintiff had not chosen to sleep upon his rights. He admits that the nuisance was apparent the moment that the dump was opened. Within thirty days thereafter he could have filed a single notice that would have covered all his damage, present or prospective, up to the commencement of the action if it was his purpose to sue at law, or up to the rendition of the judgment if he was to seek the aid of equity. He was not required to state ‘the nature and extent’ of the damage with even approximate precision. The statute is explicit that he shall state them ‘so far as it is then practicable.’ There was no need for successive notices at intervals of thirty days until action was begun. Still less was there need in proving blight of leaf and blossom to fix the point of time when the blight settled on the seed. The rule of damage to be applied is well settled in this state. If the remedy is at law, the plaintiff may recover the damages sustained up to the commencement of the action, and this is the limit of the recovery, except where the invasion is certain to be permanent. Dietzel v. City of New York, 218 N. Y. 270, 112 N. E. 720;Uline v. New York Cent. & H. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661. If the remedy is in equity, he may recover the damages sustained up to the date of the decree. Stowers v. Gilbert, 156 N. Y. 600, 51 N. E. 282;Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401, 26 Am. St. Rep. 486. Whatever may be included in the suit may be included also in the notice which is preliminary to suit.

Not lack of opportunity, therefore, but indifference or forgetfulness, is responsible for the plaintiff's plight. He had the privilege if he had acted promptly upon the discovery of the nuisance to make demand for all the damages that had developed in the past and all that might develop afterwards until the conclusion of the trial. He ignored the obvious remedy that was then ready at his hand. He waited for four years, till the city was about to discontinue the offensive and unlawful use, and then came forward with a claim for the accumulated loss. This is the very evil that the statute was designed to cure. The evil is no less where the damages are demanded as incidental to an injunction than it would be if the prayer for an injunction had been left out, and an action had been brought for the damages alone. Prompt service of the notice would have made it possible for the defendant to investigate the loss and ascertain whether the claim had been swollen in disfigurement of truth. Scrutiny becomes futile with the lapse of the obscuring years.

We are not forgetful of the fact that the bad conditions at the dump were known to the defendant's mayor and to other public officers. The plaintiff was not relieved thereby of the duty to adhere to the statutory forms. What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the ‘claim.’ Cases such as Wilson v. City of Troy, 135 N. Y. 96, 32 N. E. 44, 18 L. R. A. 449, 31 Am. St. Rep. 817, and Twist v. City of Rochester, 37 App. Div. 307, 55 N. Y. S. 850;Id., 165 N. Y. 619, 59 N. E. 1131, are quite beside the point. They deal with the notice that is necessary before a wrong can be imputed to a municipality as its corporate default. They have no bearing upon a statute which prescribes the remedial forms whereby the wrong, when imputed, is to be corrected or repaired. The Legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue. The courts are without power to substitute something else.

Another requirement of the statute is yet to be considered, for it is made the basis of an argument by members of the court that there is no necessity for a notice unless the damages are to be recovered through a remedy at law. The statute tells us that notice shall be given whenever damages are demanded, whether the claim is one ‘arising at law or in equity, and enforceable or sought to be enforced at law or in equity.’ The argument is, however, that these words, which on their face are so plain as to be hardly subject to construction, do not mean what they seem to say, or that the meaning must be rejected as too oppressive to be true. The supposed basis for this conclusion is a later provision of the same section to the effect that, where...