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Hirschberg, J. (concurring): I concur in the result reached by Mr. Justice Woodward that the interlocutory judgment should be affirmed. In Green v. Vil-' lage of Port Jervis. (55 App. Div. 58) we decided that the provision of the defendant’s charter in question was to be regarded as prescribing a rule of practice, and not as establishing an arbitrary limitation. Assuming, as we must, that the facts stated in th¿ complaint are true, it Would be unreasonable to apply to those facts the absurdly short period permitted for the filing of a, notice of intention to commence the action. Indeed, it may be doubted whether the period is not so short as to render its enforcement impracticable in the due administration of justice, and to defeat in many instances the purpose of the Legislature in giving the period of one year in which to begin an action. In other words, it would seem at least questionable whether a requirement that notice of intention to’ sue must he given, before the existence of actionable injury develops in the ordinary course of nature does not lack the essential element of practicability as a rule of legal procedure. This is especially true where the notice is required, as it is under the defendant’s charter, to state the injury inflicted as well as the happening of the accident and the time and place of the occurrence.
Interlocutory. judgment affirmed, with costs..
Document Info
Judges: Hirschberg, Woodward
Filed Date: 10/15/1901
Precedential Status: Precedential
Modified Date: 11/12/2024