La Flamme v. City of Albany , 91 Hun 65 ( 1895 )

MAYHAM, P. J.

In the first above entitled action plaintiff prosecuted the defendant for alleged negligence in suffering its-sidewalk in one of its streets to become, and remain, out of repair, by reason of which the plaintiff, while passing over the same, caught her foot in the broken grating which formed a part of the walk, and fell, breaking one of her legs. The second entitled action is prosecuted by the husband of the plaintiff in the first action for the injury which he claims to have suffered in the loss of services of his wife, resulting from the same injury for which her action is prosecuted. Both actions were tried before the same referee, who in each made a report in favor of the plaintiffs therein respectively, on which judgments were entered, from each of which the defendant appeals. The trials seem to have proceeded before the referee, so far as the receipt of evidence was concerned, as one action, and was, at the conclusion of the evidence, apulied by the referee to each of the actions, so far as the same was applicable to them respectively, and they are presented in the same manner on this appeal.

This method of proceeding was fixed on the trial by the stipulation of the parties. It is urged on this appeal that these actions could not be maintained, for the reason that the plaintiffs never appeared before the law department and made proof of their claims, as required by the charter of the city of Albany. We do not think that that position is well taken, or sustained by the facts. The case shows, and the referee finds, that verified claims were presented to the common council within three months after the alleged injury, and that more than three months elapsed after the presentation of the same to the common council before the actions were commenced. These facts show a compliance with the charter by the plaintiffs, and the referee finds as matter of fact the performance of the acts by the plaintiffs, which amount to a compliance with the charter of the defendant in reference to claims for damages against the defendant. There is nothing in the charter of the defendant which requires the plaintiff in this, class of actions to prove his claim before the law committee of the common council. All that seems to be required is a presentation of a verified claim, specifying the particulars, etc. The claim in this case is not set out in the record, but the evidence shows that a verified claim was presented to the common council, and the referee finds that plaintiff’s claim for damages was “presented to the common council of the defendant in manner and form and verified as required by the charter of the defendant, setting forth the time, place, cause, and extent of the injury.” There is nothing before us showing that this finding is not correct, and we must therefore assume that it was supported by evidence.

Upon the merits of these actions, the condition of the sidewalk, and the knowledge of the defendant, imputable to it by the lapse of time, that the grating was out of repair, were questions of fact for the referee, and we cannot, on these appeals, say that his conclusions were entirely unsupported by evidence.

The judgment must be affirmed, with costs.

PUTNAM, J., concurs. HERRICK, J. not acting.