Rider v. City of Mt. Vernon , 94 N.Y. Sup. Ct. 27 ( 1895 )

BROWN, P. J.

The plaintiff was injured by the upsetting of his wagon while driving on one of the public streets of the city of Mt. Vernon on the night of August 6, 1893. The accident was caused by driving upon a heap of sand which had been deposited in the street by the defendant Borgwald, who, as a contractor, was erecting a building upon land adjoining the street. The testimony was ample to establish the negligence of the defendants, and the freedom from negligence of the plaintiff. The charter of the city-(Laws 1892, e. 182, § 164), provides as follows:

“All claims against the city tor injuries to the person or property claimed to have been, caused or sustained by detects, want of repairs or obstructions from snow or ice or other causes in the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council within three months after the said injury is received. Such writing shall describe the time, place, cause and extent of the injury so far as then practicable, verified by the oath of the claimant, if practicable, or otherwise if not, the omission to present said claim as aforesaid within three months shall be a bar to any claim or action therefor against the city, and no action shall be commenced against said city on such claim until after two months from the presentation of said claim.”

The plaintiff’s injury was received on August 6, 1893, but the claim against the city was not presented to the common council until November 21st. It bore date and was acknowledged on November 13th, and was delivered to the city clerk on November 15th. The counsel for the city seasonably moved to dismiss the complaint on the ground that the claim was not presented within three months after the injury was received, which motion was denied, to which ruling exception was duly taken. It was essential to the maintenance of the action against the city to prove that the provision of the charter which I have quoted had been complied with, and the failure to serve the claim upon the common council within three months after the injury was received was fatal to the plaintiff’s case. Olmstead v. Town of Pound Ridge, 71 Hun, 25, 24 N. Y. Supp. 615; Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80. The contention of the respondents that a statute of limitation must be uniform' throughout the state, and can only be established by a general act of the legislature, has no support in the constitution or the decisions of the courts. There is no provision of our state constitution which requires that laws shall be uniform in their operation throughout the state, and the whole matter of municipal liability is subject to legislative control. The legislature may prohibit all actions of this character against municipalities, and it may impose such conditions precedent to the maintenance of such actions as it sees fit; and it may prescribe one limitation for one city, and another period for others. Curry v. City of Buffalo, supra. It was error, therefore, to deny the motion to dismiss the complaint against the city, and the exception to that ruling must be sustained.

The failure to serve the claim for injuries upon the common council of the city is not, however, available as a defense to the defendant Borgwald. The liability of this defendant was not alone a joint liability, but a several one. All who caused the injury were liable, and could be sued separately, or all could be joined .in one suit. The jury could have found a verdict against one defendant, and acquitted the other, and the court could have dismissed the action against the city, and retained it against Borgwald. In fact, as originally brought, the action was also against the owner of the property upon which the building was being erected, and was dismissed as against him upon the trial, but that fact did not affect the right of the plaintiff to proceed with the action against the other defendants. This court has the same power" as the trial court, and we may sustain the judgment as to one defendant and reverse it as to the other. We have examined the exceptions taken by the defendant Borgwald, but find none that affect the validity of the judgment against him. The judgment against the city of Mt. Vernon and the order denying the motion for a new trial as to such defendant must be reversed, and the complaint dismissed, with costs. The judgment and order against the defendant Borgwald must be affirmed, with costs. All concur.