Winter v. City of Niagara Falls , 104 N.Y.S. 39 ( 1907 )

Kruse, J.

(dissenting):

• I agree with Mr. Justice Spring that the provisions of the defendant’s charter requiring a claim against the defendant city, such as is set forth in the complaint, to be presented to the common council ■ within thirty days after the occurrence causing the damages or the happening of the accident, or the injury out of which the claim arose, is not merely a statute limiting the time for the commence- ' ment of the action, but a condition precedent to the maintenance of the action at all. " • •

I do not, however,'concur in the view that the. complaint shows that the provisions of- the statute have been" waived by the plaintiff. The fact that the plaintiff was subpoenaed by a member of the defendant’s police force to appear before certain officers of "the city not named,, and attend, and that "the plaintiff did appear and - the examination was conducted by the city attorney, does not necessarily show a waiver. There is no allegation in the complaint that the provisions of the charter-referred to were.waived by the defendant, and these facts do not even come within the provisions of the charter which provide for the examination of a claim.

Counsel for the plaintiff calls our attention to section 489 of the defendant’s revised charter,which permits the defendant to issue a subpoena to compel the attendance of persons to appeal and testify before "the corporation counsel in respect to claims for personal injuries, but there is no allegation in the complaint that the subpoena was issued by the defendant, or- that the plaintiff testified before the coloration counsel. Nor does it appear what the testimony of the plaintiff was, or the nature thereof, beyond the general statement that -he was examined as to the cause of .action and the injuries alleged in the complaint. •

Just what the precise nature of the proceeding was in which the plaintiff was examined by the corporation counsel does not appear. I think the allegation falls far short of a plea of waiver. Beyond tliat I am not impressed with the claim that the mere" act of the corporation counsel, in performing " a duty which the charter imposed upon him (if such was the nature of this proceeding), was a waiver upon, the part of the defendant of non-compliance by the plaintiff with this provision. I think the complaint showed neither •a substantial compliance nor a waiver of the" provisions of the defendant’s charter respecting the presentation of claims of this character. I vote for affirmance. ■

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to plead over upon payment of the costs of the demurrer and of this appeal.