Walden v. City of Jamestown

• Decision Date: 08 April 1904
• Citation: 178 N.Y. 213,70 N.E. 466
• Parties: WALDEN v. CITY OF JAMESTOWN.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 213

70 N.E. 466

WALDEN

v.CITY OF JAMESTOWN.

Court of Appeals of New York.

April 8, 1904.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Emma J. Walden against the city of Jamestown. From a judgment of the Appellate Division (80 N. Y. Supp. 65) affirming a judgment for plaintiff, defendant appeals. Affirmed.

James L. Weeks, for appellant.

Benjamin S. Dean, for respondent.

BARTLETT, J.

This action is brought against the defendant, the city of Jamestown, to recover damages for personal injuries alleged to have been received on the 8th day of April, 1900, within said city, on one of its traveled thoroughfares, known as ‘Warren Street.’

On the day in question the plaintiff, in company with her daughter, was on the way from her residence to church, and, in attempting to pass over the sidewalk of said street, experienced a serious fall in consequence of the defects existing therein, being thrown forward, striking on her left knee and head, thereby sustaining painful injuries. The referee found, in substance, that in consequence of this fall the patella of plaintiff's left knee was dislocated, and that she also received a severe shock or fall, which occasioned pain and suffering and produced a condition of partial unconsciousness, disqualifying her for a certain time from transacting business; that directly after receiving such injuries the plaintiff was removed into an adjoining residence, and there cared for to some extent; she was then removed to her own home. The trial of this action took place some 18 months after the accident. The referee found, in substance, that the injury to the plaintiff occasioned her much suffering during the greater part of the time since the accident; that in consequence thereof she had been unable to attend to her household duties, or to perform any large amount of work or labor; that she is now afflicted with spinal irritation and its attendant results, which were occasioned by said injury and by the shock received by her at the time of said injury, and that plaintiff had sustained loss and damage to the amount and extent of $1,800; that the accident to the plaintiff and the injuries received by her were the result of the negligence of the defendant in failing to keep and maintain the sidewalk in a safe and proper condition at the place where the accident occurred. The referee further found that in and by the terms and provisions of the charter of the defendant (Laws 1898, p. 675, c. 231, § 2) it is, among other things, provided as follows: ‘Where any action is brought against said city to recover damages for a death or personal injuries caused by defective sidewalks or streets, the plaintiff must show that notice in writing of the place where said accident occurred out of which said claim arose, was given to the mayor, city clerk, or some alderman of said city within forty-eight hours after the happening thereof in order to maintain such action. Such notice shall be in addition to the written notice hereinbefore required.’ The referee found, in substance, that no notice in writing or otherwise was given by the plaintiff, in pursuance of the requirements of said section, within 48 hours after the occurrence of such injury, but that on the 11th day of April, 1900, a notice in writing was prepared and signed by the plaintiff, and served upon the city clerk of the defendant. It is further found that up to the time of the preparation and service of this notice the plaintiff was suffering much pain through and in consequence of such injuries, and was in a condition where she was unable to transact business. The question is thus presented whether the failure by the plaintiff, under these circumstances, to serve this preliminary notice within the period of 48 hours prescribed by the charter of the defendant, is a bar to the present action.

The counsel for the plaintiff argued in this court the point, among others, that this exceedingly brief time allowed for the service of the preliminary notice is not only unreasonable, shocking the sense of justice, but is unconstitutional as depriving the plaintiff of property without due process of law. This question was discussed by both counsel with ability, but, as we are of opinion that there was a substantial compliance with the statute, it is unnecessary to pass upon the constitutional question. We have the finding that the notice was served within 3 days, or 72 hours, after the accident, and that up to the time of its preparation and service the plaintiff was unable to transact business. It...