Julia F. Arnold, Respondent, v. Village of North Tarrytown, Appellant

Julia F. Arnold, Respondent, v. Village of North Tarrytown, Appellant. Second Department,' March 31, 1910. Municipal corporations — negligence — action against village — section 332, Village Law, construed — limitation of action. Section 322 of the Village Law, which provided that no action could be maintained against a village for personal injuries caused by negligence, if not begun within one year after the cause of action accrued, did not create a condition precedent but a limitation on the action, as the action is not the creation of the statute. Hence, the plaintiff need not plead or prove compliance with such provision, but on'the contrary the defense to be available must be taken by the defendant. Ho particular words are necessary to create a condition precedent or a condition subsequent, but conditions are not-favored and if there be any doubt they will not be presumed. Appeal by' the defendant, the Village of North Tarrytown, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the, office of the clerk of said county on the 28th day of April, 1909, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 17th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes. , Smith Lent \_Glarenoe S. Davison and William G. Given with him on the brief], for the appellant. George A. Blauvelt, for the respondent. [MAJORITY — Carr, J.:] Carr, J.: This is an appeal from a judgment of the County Court of Westchester county in favor of the plaintiff in an action to recover damages from the defendant village for personal injuries claimed to have resulted from the negligence of the defendant in the care of its streets. At the time the action was brought the Village Law (Laws of 1897, chap. 414, § 322) provided that no action shall be maintained against a village for damages for a personal injury sustained by reason of the negligence of the village unless the same shall be, commenced within one year after the cause of action accrued. The defendant claims that this provision creates a condition precedent and that, unless compliance with it be pleaded and proved, as was not done in this case, the complaint should have been dismissed on the motion for that purpose made by the defendant at the trial. If it be a condition precedent, the appellant is correct in his present contention. If it be a limitation, then, as the defendant did not plead it, it was not available to him at the trial. The appellant does not cite any authority for its contention that the provision in question created a condition precedent, and although similar statutes have been construed by the courts very frequently in the past twenty years, no authority in support of the appellant’s claim is to be found. The decision of this court in Colell v. D., L. & W. R. R. Co. (80 App. Div. 342) is cited, however, as supporting by analogy the appellant’s contention. There, however, the question was not the same as is here. There the action was to recover damages for a death caused by the negligence of the defendant in the State of New Jersey. At common law such an action could not be maintained. The statute of W'ew Jersey (Laws of 1848, p. 151, as amd. by Laws of 1897, chap. 58), which created- the right of action provided that, to be maintained, it must be brought within one year after the cause of action accrued. This court held that the time period was a condition precedent and not a limitation. Here, however, the plaintiff’s right to maintain an action exists at common law and was not created by any statute. The statute which the appellant invokes did not create the right, but simply regulated its enforcement. It might have made.the time limit a' condition precedent, but it did not so provide expressly nor, according to the common rules of interpretation, did it do so by implication. Wo particular words áre necessary to create a condition precedent or a condition subsequent,, but it is the ordinaryrule of interpretation that conditions are not favored and that, where there is any doubt, they will not- be presumed. (Graves v. Deterling, 120 N. Y. 447.) In McKnight v. City of New York (186 N. Y. 35) a .similar statute was before the Court of Appeals for construction (Laws of 1886, chap. 572). That statute provided that no action should be maintained against cities of a certain class unless brought within one year after the cause of action accrued.. In that case the plaintiff was an infant and did not bring his action within the time provided. The question was disposed of as one of. limitation, and it was held that the period of limitation was suspended under section 396 of the Code of Civil Procedure by reason of the disability of the plaintiff; in other words, it was held that the time périod was a limitation on the right to maintain the action, and accordingly controlled by the Code provisions as to limitations.. The judgment and order of the County Court should be affirmed, with costs. . ' - Present — Hirschberg, P. J., Jenks, Burr, Rici-i and Carr, JJ. Judgment and order of the-County Court of Westchester county unanimously affirmed, with costs.