MEMORANDUM BY THE COURT. The defendant-appellant's motion to dismiss under rule 107 of the Rules of Civil Practice was properly denied. However, its motion to dismiss for failure to state a cause of action should have been granted. It appears on the face of the complaint that 30 days had not elapsed between service of notice under section 50-e Gen. Mun. of the General Municipal Law and the commencement of the action (General Municipal Law, § 50-i; Thrall v. Cuban Vil., 88 App. Div. 410). The plaintiff made a cross motion to amend "and for such other further and different relief as to the court may seem just and proper." This motion was denied because the denial of the defendant-appellant's motion to dismiss made that relief unnecessary.
Before it can succeed in this action, the plaintiff must show that the writing is a vital, living and effective instrument. This fact must not only be proven, but it must be alleged. ( Porter v. Kinsgbury, 71 N.Y. 588; Rae v. Beach, 76 id. 164; Reining v. City of Buffalo, 102 id. 308, 311, 312; First Bank of Nostasulga v. Casualty Co., 176 App. Div. 109; Williams v. Fire Association of Philadelphia, 119 id. 573; Thrall v. Cuba Village, 88 id. 410; Clemens v. American Fire Ins. Co., 70 id. 435.) The complaint is devoid of any allegation that such notice as was specified in the writing was ever given, or that the plaintiff has breathed the breath of life into the instrument by the procedure therein required to make it operative.
(Highway Law [Gen. Laws, chap. 19; Laws of 1890, chap. 568], § 16; Reining v. City of Buffalo, 102 N.Y. 308; Curry v. City of Buffalo, 135 id. 366; Thrall v. Cuba Village, 88 App. Div. 410.) While the statute does not in express terms require that the time and place of the injury shall be stated in the notice, we think that the plain purpose thereof is not fulfilled in the absence of such statement.
The authorities, as I read them, pretty well agree that the service of the written statement, in form substantially complying with the charter regulation, is a necessary preliminary to the commencement of the action against the municipality. ( Winter v. City of Niagara Falls, 190 N.Y. 198, 202 et seq.; Forsyth v. City of Oswego, 191 id. 441; Purdy v. City of New York, 193 id. 521; MacMullen v. City of Middletown, 187 id. 37, 40; Borst v. Town of Sharon, 24 App. Div. 599; Thrall v. Cuba Village, 88 id. 410.) A copy of an unverified notice or statement was attached to the summons and complaint as Exhibit A, and served with them. The complaint simply alleges the service of "a notice, a copy of which is hereto annexed, marked Exhibit A," and there is no allegation or proof of the service of any written statement.
And their performance must be alleged in the complaint. (Cases cited; Thrall v. Cuba Village, 88 App. Div. 410; Rosenstock v. City of N.Y., 97 id. 337; Bogardus v. N.Y. Life Ins. Co., 101 N.Y. 328, 334.) In Clemens v. American Fire Ins. Co. ( supra), in construing the provision in the insurance contract providing that sixty days must elapse after proofs of loss have been furnished before an action on the policy can be commenced, this court held unanimously that such requirement was a condition precedent to sustain the action and must be alleged in the complaint.
" In Thrall v. Cuba Village ( 88 App. Div. 410) the fourth department of this court has held the rule laid down by the Court of Appeals in the Reining case applicable to a complaint framed under the provisions of section 322 of the Village Law (Laws of 1897, chap. 414) that "no action shall be maintained against the village for damages for a personal injury * * * alleged to have been sustained by reason of the negligence of the village * * * unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless" a written verified statement of the claim "shall have been filed with the village clerk within six months after the cause of action shall have accrued," and then continues: "An action on such a claim shall not be commenced until the expiration of thirty days after it is presented." It was there determined that the provision that an action on such a claim could not be commenced until the expiration of thirty days after its presentation constituted a condition precedent, complian
" It was a condition precedent of the plaintiff's right to recover at all that he should show that there was a sum due and payable at the time his action was brought; he had himself agreed to this as a condition of invoking the aid of the courts, and he could not recover without alleging and proving that the cause of action had actually accrued at the time of serving the summons and complaint. ( Thrall v. Cuba Village, 88 App. Div. 410, 413, and authorities there cited.) His rights depended, after the failure of his equitable averments, upon the strength of his legal cause of action, and his complaint did not state the necessary facts, and his pleadings affirmatively showed that his action was brought before the time limited by his policy had expired.
As said by Chief Judge RUGER in the Reining case: "It is competent for them (the Legislature) to attach a condition to the maintenance of a common-law action as well as one created by statute, and, when they have done so, its averment and proof cannot safely be omitted." (See, also, Thrall v. Cuba Village, 88 App. Div. 410; Jewell v. City of Ithaca, 72 id. 220.) It is to be noticed that by the amendment of 1901 the enforcement of a contract, made by a foreign stock corporation other than a moneyed corporation, before it has obtained the required certificate, is entirely forbidden. It is made incapable of enforcement, because of the omission to procure the certificate before the contract was made.
Present here, in addition to an unequivocal waiver, are elements of estoppel as well as entrapment. (See Teresta v. City of New York, 304 N.Y. 440; Purdy v. City of New York, 193 N.Y. 521; Matter of Figueron v. City of New York, 279 App. Div. 771; Sweeney v. City of New York, 225 N.Y. 271, 273; Greguski v. Town of Oyster Bay, 19 Misc.2d 763; Bailey v. Village of Port Leyden, 31 Misc.2d 310.) The court is aware of Thrall v. Cuba Vil. ( 88 App. Div. 410 [4th Dept., 1903]) where the court held "that each requirement must have been met before the plaintiff may commence his action at all." That case may be distinguished in that no facts were presented there for a waiver or an estoppel such as are present in the case at bar.
Not only is it necessary to serve such a claim on the supervisor and town clerk, but an action against the town where there has been no such service is forbidden by the language of the statute. This has been consistently held. ( Brothers v. Town of Leon, 198 A.D. 144, 146; Lutes v. Town of Warwick, 149 id. 809, 810; Dye v. Town of Cherry Creek, 87 Misc. 207, 210; Reining v. City of Buffalo, 102 N.Y. 308, 310, 311; Thrall v. Cuba, 88 A.D. 410.) The plaintiff in the first cause of action, paragraph 13 of the complaint, alleges facts intended to show a waiver of the notice required by section 74 High. of the Highway Law.