Mary Wagner, Respondent, v. The City of New York, Appellant

Mary Wagner, Respondent, v. The City of New York, Appellant. First Department, February 6, 1914. Municipal corporation — city of Mew York — injury to pedestrian sustained from defect in street — failure to serve notice of claim on corporation counsel — amendment of complaint at trial. Where, in an action against the city of Mow York for injuries sustained by a pedestrian from a defect in the street, the court allowed an amendment of the complaint at the trial so as to allege the service of a notice of claim on the comptroller, the complaint should be dismissed where such notice contained no notice of intention to sue and it was not conclusively proved to have reached the corporation counsel within the time required .by statute. Appeal by the defendant, The City of Mew York, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Mew York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of Mew York, borough of Manhattan, seventh district, in favor of the plaintiff rendered upon the verdict of a jury for seventy-five dollars. William E. C. Mayer, for the appellant. Sidney H. Stuart, for the respondent. [MAJORITY — Hotchkiss, J.:] Hotchkiss, J.: On September 29, 1912, plaintiff was walking up Broadway, and had reached the northerly side of Mail street, where the surface was disrupted by subway work, when she stepped into a hole adjacent to the temporary wooden crossing at that point and fell. In describing the hole she said, “ it was. broken asphalt with dirt on it, * * * about 6 inches deep in the middle part where I fell,” but when asked to describe it particularly, she said, “ all I can remember is the broken asphalt with dirt in the bottom; ” then, when pressed further, she repeated it was about six inches deep in the part where she fell and may be “ a couple of foot ” broad. Solomon, a post office employee sworn for plaintiff, testified that there had been jagged holes in that vicinity for some time and that within two or three feet of the scales (at about the southwest corner of City Hall Park) there was one five inches deep and two feet on each side, according to his estimate. He did not know where plaintiff fell. No previous accident was shown. This was substantially all the testimony. The case falls within Lalor v. City of New York (208 N. Y. 431), and also Vanderborg v. City of N. Y. (158 App. Div. 297). Plaintiff filed no notice of intention to sue with the corporation counsel. At the trial she was permitted "to amend in this regard. To support her amendment she proved due service of notice of claim on the comptroller, which notice she argues must have reached the corporation counsel because she was afterwards examined at the instance of the comptroller, and within the time when her notice should have been served on the corporation counsel. The notice of claim served on the comptroller contained no notice of intention to sue and was clearly insufficient to satisfy the- statute in that regard. (See Laws of 1886, chap. 572; Greater N. Y. Charter [Laws of 1901, chap. 466], § 261, as amd. by Laws of 1912, chap. 452; Id. § 149, as amd. by Laws of 1912, chap. 398.) In this respect the case is essentially different from Missano v. Mayor (160 N. Y. 123). The determination appealed from and the judgment of the Municipal Court should be reversed, and defendant’s motion to dismiss the complaint granted, with costs in all courts'. Ingraham, P. J., and McLaughlin, J., concurred; Laughlin and Dowling, JJ., concurred on the second ground. Determination and judgment reversed and defendant’s motion to dismiss complaint granted, with costs in all courts. Order to be settled on notice.