Opinion
June Term, 1896.
Joseph A. Burr, Corporation Counsel, for the appellant.
Adelbert E. Carroll, for the respondent.
We are of the opinion that the appellant's exception to the denial of the motion to dismiss the complaint was well taken, on the ground that the respondent had failed to present to the comptroller of the city such a statement of his claim as is required by section 30, title 22 of the charter (Chap. 583 of 1888, as amended by chap. 568, Laws of 1894).
That section requires that the statement of the claim presented to the comptroller shall be duly verified, and provides that "compliance with all of the provisions of this section shall be an absolute prerequisite to the institution or maintenance of any action or special proceeding against the city of Brooklyn, and shall be pleaded in the complaint."
The statement presented to the comptroller by the respondent was signed by his attorney, but was not sworn to. We are of the opinion that the statute requires the statement to be sworn to, and that an affidavit of verification must be attached to it when presented to the comptroller. It is true that the comptroller is given power to examine the claimant, and that by so doing he may verify the claim; but the term "verified," as applied to pleadings and statements of this character, has a settled meaning in our statutory law, and it refers to an affidavit attached to the statement as to the truth of the matters therein set forth. That the Legislature, in requiring that the claim be "duly verified," did not refer to a verification thereof by an examination of the complainant by the comptroller is clear from the plain language of the law, that "no action or special proceedings shall be prosecuted or maintained against the city of Brooklyn unless it shall appear * * * that at least thirty days have elapsed since the claim or statement of the facts which it is claimed constitute or will constitute a cause of action against the city of Brooklyn, shall be presented to the comptroller * * * specifying in detail, and duly verified as follows," etc. That is, that the statement, when presented to the comptroller, shall be verified. Unless such a verified statement is presented, there is a statutory bar against the prosecution of the action.
The provision of the statute which requires this statement to be verified is a substantial one, and cannot be set aside or disregarded by the courts. Municipal liability is a subject wholly within the control of the Legislature. That body may refuse a right of action against municipal corporations, and it can impose any condition precedent to the maintenance of actions against such corporations which it chooses. ( Reining v. The City of Buffalo, 102 N.Y. 308; Mertz v. The City of Brooklyn, 33 N.Y. St. Repr. 577; sub nom., Merz v. City of Brooklyn, 128 N.Y. 617; Curry v. City of Buffalo, 135 id. 366; Simons v. The City of Brooklyn, 1 App. Div. 630.)
The case before us is within the rule applied in the cases cited, and no distinction exists between those cases where the question was presented on a demurrer to a defective complaint and those where it is presented upon the trial of an issue of fact.
The judgment and order must be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment and order reversed and new trial granted, costs to abide the event.