Winter v. City of Niagara Falls

Decision Date10 December 1907
Citation82 N.E. 1101,190 N.Y. 198
PartiesWINTER v. CITY OF NIAGARA FALLS.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Action by Albert J. Winter against the city of Niagara Falls. On a judgment of the Appellate Division (104 N. Y. Supp. 39,119 App. Div. 586), reversing an interlocutory judgment sustaining a demurrer to the complaint, the case was certified to the Court of Appeals on the question of the sufficiency of the fact stated in the complaint to constitute a cause of action. Question answered in the negative, and judgment of Special Term affirmed.

This action was brought by the plaintiff to recover damages for injuries sustained by him, which are alleged to have been caused by the negligence of the defendant's servants. The complaint sets forth that the plaintiff, in May, 1901, was driving through one of the streets of the city, when a steam roller, operated by one of its employés, suddenly started, making a great noise, frightened his horse, and caused it to run away. His wagon was overturned, and the injuries complained of were then occasioned. He sets out the nature of the injuries, and alleges that they were caused, solely, by the negligence of the defendant and without any negligence on his part. He alleges that, as the result of his injuries, he was confined in a hospital for a certain length of time, and that, while there, he was ‘visited by Mr. M. B. Butler, at that time mayor of the defendant, who discussed with the plaintiff the accident, which resulted in his injury, and who stated to the plaintiff that he ‘need not worry’ and that ‘they would pay the bill”; and that, shortly thereafter, the bill for hospital services was submitted to the common council of the city and paid. The complaint further alleges: That in July, 1904, the plaintiff caused to be filed with the clerk of the city ‘a notice of intention to commence suit to recover damages' and ‘a verified petition directed to the common council,’ setting forth ‘the nature and extent of plaintiff's claims in consequence of the accident.’ That ‘40 days and more have expired since the filing of said petition.’ That, ‘after this plaintiff had caused his verified claim to be served upon the common council, he was subpoenaed by a member of the defendant's police force to appear before certain officers of said city, and, in compliance with said subpoena, did so appear, and was then examined as to the cause of action and the injuries herein alleged; said examination being conducted by the city attorney,.’ Lastly, it alleges that the plaintiff, at the time of the accident, ‘was in his eighteenth year,’ and ‘that he arrived at his majority July 17, 1904.’ The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at the Special Term; but, upon appeal to the Appellate Division, the interlocutory judgment sustaining the demurrer was reversed, and the case was then certified to this court, upon the question as to the sufficiency of the facts stated in the complaint to constitute a cause of action.

O'Brien and Vann, JJ., dissenting.

Franklin J. McKenna, for appellant.

John T. Ryan, for respondent.

GRAY, J. (after stating the facts as above).

Upon the face of this complaint, it appears that more than three years had elapsed after the plaintiff sustained his injuries and before he presented a claim for damages to the defendant; but the majority of the learned justices of the Appellate Division were of the opinion that the defendant had waived compliance with a provision of its charter, which would have barred the action. The charter of the defendant provided that ‘all claims for damages founded upon alleged negligence of the city shall be presented to the common council, in writing, within thirty days after the occurrence causing such damages'; that the notice shall state the time, place, cause, nature, and extent of the damages and shall be verified; that ‘the omission to present any claim in the manner, or within the time, in this section provided shall be a bar to an action against the city therefor’; and that no action or proceeding to recover any claim against the city shall be brought until the expiration of 40 days after the claim shall have been presented before the common council for audit.

Very correctly, the opinion of the court below disposed of the plaintiff's contention that the provision of the charter with respect to the time for presentation of a claim was a statute of limitation, the running of which, within the provisions of Code Civ. Proc. § 396, would be suspended during infancy. It was nothing of the kind, for, as it was observed, the requirement does not relate to the commencement of an action. The statute requires the presentation of a claim to be made within 30 days of the occurrence causing the damage, and it bars an action against the city in the case of an omission to do so. The provision therefore became an essential part of a complainant's cause of action, and compliance with its requirement was a fact to be alleged and proved, like any other condition precedent to the existence of an obligation. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792;Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80;MacMullen v. City of Middletown, 187 N. Y. 37, 79 N. E. 863. Municipal liability for injuries is a matter that is within the control of the Legislature, and when it is enacted what that liability shall be, and the conditions upon which it may be enforced are prescribed, the...

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65 cases
  • Touhey v. City of Decatur
    • United States
    • Indiana Supreme Court
    • 6 de janeiro de 1911
    ...Am. St. Rep. 605, 608, 609, and note; Purdy v. City of New York, 193 N. Y. 524, 86 N. E. 560;Winter v. City of Niagara Falls, 190 N. Y. 198, 204, 205, 82 N. E. 1101, 125 Am. St. Rep. 540, 543, 545;City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 490, 41 S. W. 704;Williams v. City of Galve......
  • Heck v. City of Knoxville
    • United States
    • Iowa Supreme Court
    • 11 de fevereiro de 1958
    ... ... This is also the doctrine of many cases from various jurisdictions. Winter v. City of Niagara Falls, 190 N.Y. 198, 82 N.W. 1101, 1102-1103, 123 Am.St.Rep. 540, 13 Ann.Cas ... ...
  • Touhey v. City of Decatur
    • United States
    • Indiana Supreme Court
    • 6 de janeiro de 1911
    ... ... v. City of New York (1908), 193 N.Y. 521, 86 N.E ... 560; Winter v. City of Niagara Falls ... (1907), 190 N.Y. 198, 204, 205, 82 N.E. 1101, 123 Am. St ... 540, ... ...
  • Hagberg v. City of Sioux Falls
    • United States
    • U.S. District Court — District of South Dakota
    • 12 de março de 1968
    ... ... Decatur, 175 Ind. 98, 93 N.E. 540, 32 L.R.A.,N.S., 350 (1911); Winter v. Niagara Falls, 190 N.Y. 198, 82 N.E. 1101 (1907). As such, neither of these facts which put the City on notice prior to plaintiff's application ... ...
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