William Harrigan, Respondent, v. The City of Brooklyn, Appellant

William Harrigan, Respondent, v. The City of Brooklyn, Appellant. 'The provision of the charter of the city of Brooklyn (§ 30, tit. 32, chap. 583, Laws of 1888) prohibiting the maintenance of an action against the .city, unless it shall appear by the complaint that thirty days have elapsed since the presentation of the claim or claims upon which the action is; founded duly verified to the comptroller of the city'f or adjustment, does-not apply to claims arising ex delicto. Minick v. City of Troy (83 N. Y. 514), Reining v. City of Buffalo (102 id. 309), Dickinson v. Mayor, etc. (92 id. 584), Brehm v. Mayor, etc. (104 id. 186), distinguished. (Submitted January 13,1890 ; decided January 28, 1890.) Appeal from an interlocutory judgment of the City Court of Brooklyn, entered upon an order made June 24, 1889, which affirmed an interlocutory judgment, entered upon an order sustaining a demurrer to plaintiffs complaint. This action was brought to recover damages for injuries' alleged to have been caused by defendant’s negligence. Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it omitted to state that the claim, duly verified, had been presented to the comptroller for adjustment and at least thirty days had elapsed. Almet F. Jenks, corporation counsel, for appellant. Compliance with section 30 of chapter 583 of the Laws of 1888 is-a condition precedent to plaintiffs right of action. (Reinig v. City of Buffalo, 102 N. Y. 308.) The statute is applicable to actions in tort. (Reinig v. City of Buffalo, 102 N. Y. 308; Duryee v. Mayor, etc., 26 Hun, 120, 123; Reed v. Mayor, etc., 31 id. 312; 97 N. Y. 620 ; Laws of 1860, chap. 379; Dickinson v. Mayor, etc., 92 N. Y. 584, 589 ; Brehm v. Mayor, etc., 104 id. 186, 191; Minick v. City of Troy, 83 N. Y. 516; Coster v. Mayor, etc., 43 id. 413; Baine v. City of Rochester, 85 N. Y. 523 ; Code Civ. Pro. § 3245.) William J. Gaynor for respondent. In the light of the decision of the court, the appeal does not present an open question. (Code Civ. Pro. § 3245 ; Taylor v. Cohoes, 105 N. Y. 54; Cage v. Hornellsville, 106 id. 667; McGaffin v. Cohoes, 74 id. 387.) The statute under construction in this-action is obviously at least as narrow in its scope as the Code provision hereinbefore cited. In express terms it limits itself '¡to “the claim or claims upon which said action or special •proceeding is founded.” (Laws of 1886, chap. 572.) [MAJORITY — Andrews, J.] Andrews, J. This case is governed by the decision in Howell v. City of Buffalo (15 N. Y. 512). It was there held that a ■charter provision in the charter of Buffalo declaring that “ it should be a sufficient bar or answer to an action or proceeding in any court for the collection of any demand or claim against the city that it had never been presented to the council for audit or allowance,” did not apply to claims arising ex delicto. The same principle of construction has been applied to statutory provisions prohibiting the allowance of costs in action against municipal corporations, unless the claim upon which the action is founded had been presented to the chief fiscal officer of the ■corporation before the commencement of the action. (Laws 1859, chap. 262; Code Civ. Pro. § 3245; McClure v. Niagara, 3 Abb. Ct. App. Dec. 83; Taylor v. City of Cohoes, 105 N. Y. 54; Gage v. Village of Hornellville, 106 id. 667.) The cases of Minick v. City of Troy (83 N. Y. 514), and Reining v. City of Buffalo (102 id. 309), arise under charter provisions which in terms include claims ex delicto, and are not in conflict with the other cases. The charter of Brooklyn, under which the present contention arises, declares that “no action or special proceeding” shall be maintained against the city, unless it shall appear by the complaint that at least’ thirty days had elapsed “ since the claim or claims, upon which said action or special proceeding is founded, were presented in detail and duly verified by such claimant or claimants to the comptroller of said city for adjustment,” and a subsequent clause in the same section authorizes the comptroller to require “ any person presenting for settlement an account or claim,” to be sworn and answer ■orally as to any facts relative to the justness of such “ account •or claim.” (Chap. 583, Laws of 1888, tit. 22, § 30.) The words “ claim or account,” in connection with the purpose of presentation, and the designation of the officer to whom the presentation is to be made, naturally indicate claims on contract which may, in ordinary course, he adjusted by the comptroller or chief financial officer or officers of the city, the justness of which may be ascertained by the summary method of examination provided. There is nothing in the language of the charter to take the case out of the operation of the decisions. In Dickinson v. Mayor, etc. (92 N. Y. 584), and Brehm v. Mayor, etc. (104 id. 186), it was assumed by counsel that the provision in the Hew York Consolidation Act (Laws of 1813, chap. 385, § 105), applied to actions ex deUeto. Upon this assumption the question was presented in the first case whether the statute of limitations on a cause of action for negligence commenced to run from the time of the injury, or from the time of the demand made on the comptroller, and it was held that the charter provision did not postpone the period for the commencement of the limitation prescribed by the general statute, and in the second case, that a delay of thirty days after presentation of a claim, did not bar the cause of action where the six years expired during that period. The court did not consider the question now presented. There has been a diversity of opinion in the Supreme Court upon the question, but the general rule having been declared by this court in analogous cases, we think there is no reason for now changing it. The opinions below contain an exhaustive review of the cases on the subject, and further elaboration is unnecessary. We concur in the conclusion reached, and the judgment should be affirmed, with leave to the defendant to apply to the court below for leave to answer. All concur. Judgment accordingly.