Mary C. Bogart, as Administratrix, etc., of John Bogart, Deceased, Appellant, v. The City of New York, Respondent

Mary C. Bogart, as Administratrix, etc., of John Bogart, Deceased, Appellant, v. The City of New York, Respondent. Second Department, October 16, 1908. Pleading — notice of intention to sue municipality—denial of knowledge or information. Where the complaint in an action to recover against a municipality for negligence causing a death alleges the filing of a notice of intention to commence action, as required by statute, a denial of any knowledge or information sufficient to form a belief as to the allegation is frivolous and insufficient to raise that issue. . . Appeal by the plaintiff, Mary C. Bogart, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond, on the 30th day of January, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term. . The action was for damages for the death of the plaintiff’s intestate by the alleged negligence of the defendant. Frank J. Dupignac, for the appellant. Theodore Gonnoly [Thomas F. Noonan and Francis N. Pendleton with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The complaint was dismissed on the trial on the ground, that the plaintiff had failed to prove that she had filed with the corporation counsel notice of intention to commence the action as required by chapter 572 of the Laws of 1886. There was no such issue. It was alleged in the 18th subdivision of the amended complaint that such notice had been filed. There was no denial of this in the answer. The denial that the defendant “ has any knowledge or information sufficient to form a belief as to any of the allegations in said amended complaint ”, except, etc., was not a denial of it. It was a frivolous denial in respect of it. If the notice was filed it was in a public. office of the city, and the city is therefore presumed to have knowledge wdiether it was filed or not. In such a case such a denial is not permissible (Rochkind v. Perlman, 123 App. Div. 808; Purdy v. City of New York, 126 id. 320; City of New York v.. Matthews, 180 N. Y. 41). The judgment should be reversed. Woodward, Hooker, Rich and Miller, JJ., concurred. t Judgment reversed and new trial granted, costs to abide the-event.