Opinion
March, 1896.
William Stainton and J.P. Berg, for plaintiff.
F.M. Scott and R.C. Beatty, for defendant.
The plaintiff on March 12, 1895, sustained personal injuries by reason of the negligence of the defendant in respect to the highway known as Eighth avenue. The defendant moved to dismiss the complaint upon the ground that notice of intention to commence the action had not been filed with the counsel to the corporation within six months after the cause of action accrued, as required by chapter 572 of the Laws of 1886. The notice was given, but not until about ten months after the happening of the accident, and the fact is so alleged in the complaint. The fact of the filing of the notice within six months must be set up in the complaint or a cause of action is not alleged. Merz v. City of Brooklyn, 33 St. Repr. 577; affd., 128 N.Y. 617 ; Curry v. City of Buffalo, 135 id. 366; Foley v. Mayor, 1 App. Div., 586. The legislature can attach such a condition to the maintenance of either a common law or statutory action. Reining v. City of Buffalo, 102 N.Y. 308. It is a condition precedent. Bauer v. City of Troy, 44 St. Repr. 814; Babcock v. Mayor, 24 Abb. N.C. 276; affd., 56 Hun, 196; Dawson v. City of Buffalo, 49 id. 322; Frankel v. Mayor, 18 St. Repr. 241; Sullivan v. City of Syracuse, 77 Hun, 440. Harrigan v. City of Brooklyn, 119 N.Y. 156, and Norton v. Mayor, 37 N.Y.S. 1, merely hold that in actions ex delicto a demand for adjustment need not be served upon the comptroller, and in no manner affect the proposition involved here.
It is claimed that because the plaintiff is an infant the statute does not apply to him until one year after the disability has been removed. Code, § 396. The answer to this is that the exceptions in the Code do not apply to the statute in question, which is special in its character and contains no exceptions. Infants, like other persons, are barred by an act for limiting suits at law if there is no saving clause in their favor. Angell on Lim. (May's ed.), §§ 195, 476.
Plaintiff asked leave to amend by alleging oral notice to an attache of the corporation counsel's office. The amendment if granted would be unavailing, for when the law requires a notice to be filed it implies that it shall be in writing. Foley v. Mayor, supra. It follows that the motion to dismiss the complaint must be granted.
Motion granted.