Opinion
December, 1904.
Henry A. Friedman, for the appellant.
Theodore Connoly, for the respondent.
This is an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. It is provided by statute (Laws of 1886, chap. 572) that no action against the mayor, aldermen and commonalty of any city of this State having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, shall be maintained 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 proper place for the filing of a notice under this statute in an action intended to be brought against the city of New York is the corporation counsel's office. There can be no doubt of that. ( Krall v. City of New York, 44 App. Div. 259; Smith v. City of New York, 88 id. 606.) The complaint in this action did not contain an allegation that the notice of intention was filed in the office of the corporation counsel, but it did allege that such a notice was served upon the comptroller of the city of New York. Issue was joined, and the case coming on for trial, the complaint was dismissed for the want of this necessary allegation, but the entry of judgment was suspended in order to allow the plaintiff to make a motion at Special Term to amend the complaint by inserting the required allegation. That motion was made before judgment was entered and it was denied and the plaintiff now appeals.
The situation of the case is almost identical with that appearing in Patterson v. Hochster ( 21 App. Div. 432), with the exception that there the motion to amend was made after judgment was entered, while here it was before. The only answer that seems to be made to the motion is that it is unnecessary to amend the complaint because the plaintiff insists that the allegation of service of the notice of intention upon the comptroller was sufficient if he could prove in connection therewith that the notice was transmitted by the comptroller to the corporation counsel and acted upon by him, thus bringing the case within what was held in Missano v. Mayor ( 160 N.Y. 123) and Sheehy v. City of New York (Id. 139). But in order to introduce that proof the complaint would require an amendment.
We are of opinion that the motion should have been granted and under the authority of Patterson v. Hochster ( supra) the amendment of the complaint should have been allowed. The judgment also should have been vacated. Under the circumstances, the court in the exercise of its control over its own judgments ( Hatch v. Central Nat. Bank, 78 N.Y. 487) should vacate this judgment in furtherance of justice. But the relief should not be granted without some indemnity to the defendant. The city has been put to the trouble and expense of a trial; the objection it took to the maintenance of the action under the allegations of the complaint appears to have been well taken. We think the same terms should be imposed here as were made the condition of the order of reversal in Patterson v. Hochster ( supra), namely, that the order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and an order should be made vacating the judgment and granting leave to serve an amended complaint within twenty days after the entry of the order and notice thereof, upon condition that the plaintiff pay to the defendant the expense of the entry of the judgment, the costs and disbursements of the trial, and ten dollars costs of the motion. Costs and disbursements of the appeal to be set off against the costs to be paid to the defendant.
O'BRIEN, MCLAUGHLIN and LAUGHLIN, JJ., concurred; VAN BRUNT, P.J., dissented.
Order reversed, with ten dollars costs and disbursements, and order directed as stated in opinion upon the terms therein mentioned.