Sweeney v. . City of New York , 225 N.Y. 271 ( 1919 )

No action to recover damages for personal injuries sustained because of its negligence may be maintained against the city of New York unless notice of an intention to begin such action and of the time and place where the injuries were received shall have been filed with the corporation counsel within six months after the cause of action shall have accrued. (Laws of 1886, chapter 572.)

This provision should be reasonably construed. Its purpose is to protect the city against unfounded claims by enabling its law officers to investigate promptly the circumstances surrounding the alleged accident and the place where it is said to have occurred. It is not a trap to catch the unwary or the ignorant.

On March 15th, 1913, the plaintiff was injured. She says she stumbled over a defective cover of a hole in the sidewalk on the side of Pacific street near the Twenty-third Regiment Armory. On March 18th her father mailed a letter to the finance department of the city, giving the time of the accident and adding: "There is a coal or vent hole in the sidewalk over which has been placed a wooden cover which protrudes two or more inches above the sidewalk, one portion of which is broken off." This letter was received, and on March 27th came into the possession of the corporation counsel. Thereafter, an investigator from his department interviewed the plaintiff as to the accident. On June 18th the finance department received a second letter from the plaintiff's father again referring to the accident, complaining of the delay and stating that if he heard nothing within a few days, he would be obliged to place the matter in the hands of an attorney. On the 20th this letter was sent to the corporation counsel. Both letters were written at the plaintiff's request and on her behalf.

The complaint was dismissed on the ground that the notice given was not sufficient. No other question was raised or considered by the trial court. It is now said that the complaint is defective in that it failed to allege that thirty days have elapsed since the demand was presented to the comptroller and that he thereafter for thirty days refused to make any adjustment of the claim. (Greater New York Charter [L. 1901, ch. 466], section 261.) It is quite true that such a statement should have been included in the complaint. (Casey v. City of New York,217 N.Y. 192.) But proof was received without objection that at least as early as March 19th the comptroller received a letter which was and which he treated as a claim and that on July 25th this claim was rejected by him. With this evidence in the case, the complaint should be deemed amended to conform to the proof.

The important questions for our consideration, therefore, are whether the two letters can be considered a notice within the meaning of the act of 1886. Were they filed with the corporation counsel? Do they adequately state the place of the injury and an intention to begin an action? All these questions we answer in the affirmative.

"Notice" is to be given of certain facts and purposes. It must be more than an oral notice for it is to be filed, but its form is not specified nor is any signature or oath required. It may be drawn by the ignorant or the illiterate, but the information required is to be communicated in writing to the corporation counsel. He is to be told of the accident, of its time and place and that the person injured intends to sue the city.

If such information so comes to him, the object of the statute is attained. Whether in one paper or two is immaterial. In either event, he has before him in writing the knowledge which the legislature intended that he should have so that he may properly protect the city.

The verb "to file" may be used in various senses. When as in this statute it is said that a paper must be filed with an officer the requirement is at least complied with when the party delivers that paper to the officer at his official place of business and there leaves it with him. Whether he does this personally or by mail is, we think, immaterial, so long as it is actually received. In Gates v. State of New York (128 N.Y. 221) a notice was mailed but there was no proof that it was received by the board to which it was addressed. The notice may be left by an agent. Finally, in construing this same statute, we held in Missano v. Mayor, etc., of N.Y. (160 N.Y. 123) that it is enough if the corporation counsel actually and seasonably receives the notice from another official to whom it may have been mistakenly delivered. It is true we there speak of his having received and filed the notice. We speak of his examination of the plaintiff. Both remarks were appropriate in the case cited. And in any case similar evidence is competent for the paper or papers received by the corporation counsel must be in such form that he knows or should know that they contain the information he is entitled to have, and where he acts upon it, it shows to some extent that the paper was not intended for nor taken as a mere bit of casual news. In the Missano case the notice was actually filed by the comptroller. That fact was not material to the result. The rule we adopt is that if a paper of the character required comes into his possession within the time limited by the statute, it is unimportant how the possession is acquired. The object of the statute is accomplished.

We think the place of the accident was sufficiently indicated. The rule as to this matter is clear. As we said in Purdy v.City of New York (193 N.Y. 521) all that the statute requires is such a statement as will enable the authorities to locate the place of the accident. No particular form of words is required. Measurements need not necessarily be given. Any description adequate for the purpose is enough.

It is when we come to apply this rule to particular instances that difficulty arises. Every case is a law to itself. A broken culvert would be one thing; one hole in a pavement among many another. Does the notice, whatever it is, fairly indicate to the authorities the place of the accident so that they may readily find it and make proper investigation?

A review of some recent cases in this court shows the narrow line between the good and the bad. In Purdy v. City of NewYork (193 N.Y. 521) Milford street was a mile long. The notice spoke of the opening, gully or trench running across the sidewalk. Which sidewalk was not stated. We thought that under the circumstances the authorities might have been misled. This case is on the border line and in holding the notice defective we went as far as we are disposed to go. In Casey v. City of NewYork (217 N.Y. 192) the notice spoke of "a hole in the pavement on the public highway at or about Washington Street near Vestry Street." As we pointed out this was most indefinite. The place indicated might not even be in Washington street. The notice did not state on which side of Vestry street it was. No one could locate the place with accuracy. In Weisman v. City of New York (219 N.Y. 178) the plaintiff gave the date of accident as eight days too early. We held that this made the notice invalid. In Tynan v.City of New York (223 N.Y. 596) the notice gave the place of accident as the northeast corner of Flushing avenue and Garden street and complained of the condition of crosswalk, pavement or sidewalk. Here again we thought the notice too indefinite. Many defects might exist in that locality, any one of which might have caused the accident. It was because the particular one complained of could not be identified that we held the notice insufficient. On the other hand in Werner v. City of Rochester (149 N.Y. 563) the notice spoke of a large pile of dirt in the middle of the street about one-third of a mile east of a railroad track. That notice we held good. We thought that as the defect was obvious it sufficiently indicated the place where the accident was said to have occurred.

In the case at bar the street was given, the sidewalk, the approximate location upon it of the accident, the nature of the obstruction and a detailed description of it which could hardly have been mistaken. The attention of the city authorities was clearly called to precisely what was complained of. The point of the accident was definitely indicated.

The two letters also sufficiently stated an intention to sue the city in case the claim was not settled. (Sheehy v. City ofNew York, 160 N.Y. 139.) The first describes the accident, states that it is written so the city may investigate, and asks that the matter be given attention. The second complains of delay, said the matter had been investigated and states that unless the writer hears from the comptroller promptly he will be compelled to place it in the hands of an attorney. This seems to us to be fairly a notification that a suit would be begun.

The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.