Kellogg v. Mayor of New York

Williams, J.:

The action was brought by a husband to recover for the loss of services of his wife, occasioned by injuries received by her, alleged to have been caused by the negligence of the defendant, and also to recover for expenses incurred for medicines, medical attendance, care and nursing of the wife rendered necessary by such injuries so caused. The injuries were received on the 26th day of March, 1891. The action was commenced December 11, 1893. There was never any notice of intention to commence the action served upon the counsel to the corporation. The answer set up the one-year Statute of Limitations and the failure to serve such notice of intention to commence action, and called attention to the provisions of chapter 572, Laws of 1886. There was a trial and verdict for the plaintiff, the defendant raising these questions, but giving no evidence as to the merits of the claims in other respects.

There is no dispute as to the facts, and the only question is whether the plaintiff’s right of action was lost by a failure to comply with the provisions of the statute above referred to.

The statute provides in brief: Section 1. “ Yo action against the mayor, aldermen and commonalty * * * for damages for personal injuries alleged to home been sustained by reason of the negligence of such mayor, aldermen and commonalty * * * shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

The plaintiff claims the action is not for damages for personal injuries sustained by reason of negligence of the defendant so as to bi'ing it within the provision of this statute, but is an action to *328 recover for an injury to a property right. We think, however, that there can be no doubt that the action is one directly within the provisions of the statute. Whatever the courts may have written in other cases, the Court of Appeals in Maxson v. R. R. Co. ( 112 N. Y. 561 ) made it quite clear that such an action as this ivas an action for damages for personal injuries. That was an action like this for loss of services of the wife, etc., by reason of personal injuries to her, caused by the negligence of the defendant. The defense was the three years’ Statute of Limitations under section 383, subdivision 5, Code of Civil Procedure, which read as follows: 5. “ An action to

recover damages for a personal injury resulting from negligence.” It was held that this provision of the Code applied to the case in hand, and to every ease where the action was founded on the fact of an injury to a person, accompanied by negligence, whether the person was that of the plaintiff or of any other individual, for whose injury the plaintiff was entitled to bring the action.

The language of the act in question is not materially different from that of the three years’ statute in the Code considered in the case above cited. In both, the action is for damages for “ apersonal injury.”

The discussion ot the question is quite full in that case, and we need not quote from the opinion here. We regard that case as conclusive and controlling upon us in the determination of this appeal.

In Curry v. The City of Buffalo ( 135 N. Y. 366 ) it was held that a compliance with the provisions of the statute in question, as to the service of the notice, was a condition precedent to the right to bring the action, and the commencement of the action could not be regarded as such notice. It was held in that case that the action could not be maintained in the absence of such notice, and we must decide in. the same way here.

This question was distinctly raised by motion at the commencement and close of the case, and by the motion for a new trial. The one-year Statute of Limitations contained in this same statute is equally a defense to this action. The action was not commenced until more than two years after the injuries were received, and the plaintiff’s right of action had accrued. The statute was pleaded, and the motion for a new trial, the facts being undisputed, raised this question as well as the one relating to the failure to serve notice.

*329 Our conclusion is that the exceptions by defendant should be sustained, and the motion for a new trial should be granted, with costs to the appellant to abide event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Exceptions sustained, and motion for new trial granted, with costs to defendant to abide event.