Weisman v. City of New York

• Decision Date: 10 October 1916
• Citation: 114 N.E. 70,219 N.Y. 178
• Parties: WEISMAN v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 178

114 N.E. 70

WEISMAN

v.CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 10, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ida Weisman against the City of New York. From an unanimous order of the Appellate Division (169 App. Div. 558,155 N. Y. Supp. 418), reversing a judgment of the Trial Term, entered on order setting aside a verdict and dismissing plaintiff's complaint and directing that judgment be entered on the verdict in favor of plaintiff, and from the judgment entered thereon, defendant appeals. Judgment and order reversed.

Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant.

George F. Hickey and Breitbart & Breitbart, all of New York City, for respondent.

HISCOCK, J.

This action was brought by plaintiff to recover damages for personal injuries claimed to have been sustained by reason of a defective sidewalk, and a judgment has been rendered in her favor. Concededly the statute explicitly and peremptorily required that as a condition precedent to the commencement of her action to recover such judgment she should serve--

‘notice of the intention to commence such action and of the time and place at which the injuries were received,’ by filing the same ‘with the counsel to the corporation or other proper law officer * * * within six months after such cause of action * * * accrued.’

She attempted to comply with this requirement by filing a notice wherein she stated that the time of the accident was August 20, 1912. On the trial, notwithstanding the due and timely objections and motion of the defendant, she was allowed to recover under such notice on evidence which showed that the accident happened August 28, 1912. Intermediate the service of the notice and the trial she had been examined by the corporation counsel, and had stated that the accident occurred August 28th, but subsequent to such examination she had served her complaint, in which she had alleged that the accident occurred on the date mentioned in her notice, to wit, August 20, 1912. The trial judge submitted it to the jury to determine as a question of fact whether her notice with its erroneous statement of the time of the accident was a substantial compliance with the statute, and this was duly excepted to by the defendant's counsel, who insisted that this was not a question of fact, but that it should be held as a matter of law that substantial compliance with the statute had not been effected.

[1] Various theories are advanced for the purpose of relieving plaintiff from the blunder affecting her notice. It is argued that the notice described the place of the accident, and specified a time when the accident was alleged to have occurred, and that there was therefore no defect in the form of the notice, and some distinction seems to be attempted between a notice which is ‘insufficient in form’ and one which is sufficient in form, but contains an ‘error in fact,’ in that it inaccurately states the alleged date of the accident. I am not able to adopt any such theory as this. The statute by its terms makes the statement of the time of the accident just as important as the statement of the place of the accident, and the results of the failure to comply with this requirement because of an erroneous statement of the date of the accident cannot be avoided by saying that the notice is correct in form although erroneous in fact. All the cases on the subject fully recognize, either directly or by implication, the necessity, not only of a statement of the date of the accident but also of a substantially correct statement of that date. Foster v. City of New York, 168 App. Div. 924,152 N. Y. Supp. 1111;Cotriss v. Village of Medina, 139 App. Div. 872, 874, 875,124 N. Y. Supp. 507, affirmed Id., 206 N. Y. 713, 99 N. E. 1105;Purdy v. City of New York, 193 N. Y. 521, 523, 524,86 N. E. 560;Carson v. Village of Dresden, 202 N. Y. 414, 417,95 N. E. 803;City of Ft. Wayne v. Bender, 57 Ind. App. 689, 105 N. E. 949;Ouimette v. City of Chicago, 242 Ill. 501, 507, 90 N. E. 300;Casey v. City of New York, 217 N. Y. 192, 111 N. E. 764;Carter v. City of St. Joseph, 152 Mo. App. 503, 133 S. W. 851;Barron v. White, 29 R. I. 482, 72 Atl. 644;Gardner v. City of New London, 63 Conn, 267, 28 Atl. 42;White v. Stowe, 54 Vt. 510.

In the next place the argument is advanced that although the date of the accident was incorrectly stated, the defendant suffered no harm therefrom, and therefore that the error may be disregarded. It is argued on this point:

‘If * * * the inaccuracy did not mislead the defendant or result in any respect to its prejudice, it should not be regarded as insufficient.’

[3] Again, I think that this statement is not in accordance with the decisions of this court, but directly opposed thereto; that the effects of a failure to comply with the statute requiring service of this notice were neither tested nor avoided by the fact that the city has not suffered in consequence of such error. And first in this connection, there ought to be corrected the impression that plaintiff fully advised defendant by her examination under the statute that the date finally given on the trial was the correct time of her accident. As has been stated, subsequent to the time when she was thus examined and gave a date corresponding with that given on the trial, she served her complaint, in which she reverted to and alleged the original incorrect date of August 20th. Therefore, by her last and controlling word on this subject, the defendant was authorized to believe that after all the correct date was August 20th, and that that would be the one which it was compelled to meet on the trial. Under all of these circumstances the law is perfectly clear that a claimant is not relieved from failure to comply with the statute because he has been examined as to the details of his claim, or because it might be supposed that the defendant has not suffered from a mistake in the notice.

In Winter v. City of Niagara Falls, 190 N. Y. 198, 205,82 N. E. 1101, 1103 (123 Am. St. Rep. 540,13 Ann. Cas. 486), it appeared that the plaintiff had failed to present a claim for damages resulting from his alleged injuries within the time specified by the statute, but the Appellate Division were of the opinion that the defendant had waived compliance with the provisions of its charter which would have barred the action. It was claimed that this waiver had been accomplished by subpoenaing the plaintiff to appear and submit to an examination which was conducted by the city attorney. It was held by this court that such examination did not amount to a waiver, but simply to a discharge of his duty by the corporation counsel, and that ‘with a pleading neither alleging compliance, substantial, or otherwise, with the requirement of the statute, nor alleging a waiver, or any facts excusing the plaintiff from performance, the defendant's demurrer’ to the complaint, on the face of which appeared plaintiff's failure should have been sustained.

In Forsyth v. City of Oswego, 191 N. Y. 441, 445,84 N. E. 392, 393 (123 Am. St. Rep. 605), the plaintiff failed to serve the requisite notice of the time and place of his alleged injuries by reason of a defect in the highway. Subsequently he was interrogated as to the circumstances of his alleged accident at a hearing before a committee of the board of aldermen to which his claim had been referred, and it was asserted that such facts constituted a waiver of a defense on the part of the municipality arising from failure to serve his notice. It was held, however, that these facts did not constitute such a waiver, the court saying:

‘Neither is the fact that the plaintiff was given a hearing before that committee evidence of the defendant's intention to waive anything. The defendant had the right to investigate the circumstances under which the claim arose before deciding what action it would take. Municipal corporations, acting through their officers and agents, have the right to conduct such investigations for the very purpose of ascertaining whether they are liable or not.’

In Purdy v. City of New York, 193 N. Y. 521, 523,86 N. E. 560, 561, a notice was served which did not sufficiently designate the place of the alleged accident to plaintiff, and it was claimed that the retention of this notice by the defendant operated as a waiver of the requirement of the statute. The court, speaking through Judge Werner on this subject, said:

‘The statute before us, reasonably construed, does not require those things to be stated with literal nicety or exactness, but it does require such a statement as will enable the municipal authorities to locate the place and fix the time of an accident. When a notice contains the information necessary for that purpose, it is a substantial compliance with the statute, but when it falls short of that test it is insufficient.’

In Cotriss v. Village...