Bogart v. City of New York

Appellate Division of the Supreme Court of New York

Bogart v. City of New York

128 A.D. 139, 112 N.Y.S. 549, 1908 N.Y. App. Div. LEXIS 400

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 16, 1908

StatusPublished

Cited by3 cases

This text of 128 A.D. 139 (Bogart v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bogart v. City of New York, 128 A.D. 139, 112 N.Y.S. 549, 1908 N.Y. App. Div. LEXIS 400 (N.Y. Ct. App. 1908).

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Opinion

Gaynor, J.:

The complaint was dismissed on the trial on the ground, that the plaintiff had failed to prove that she had filed with the corporation counsel notice of intention to commence the action as required by chapter 572 of the Laws of 1886. There was no such issue. It was alleged in the 18th subdivision of the amended complaint that such notice had been filed. There was no denial of this in the answer. The denial that the defendant “ has any knowledge or information sufficient to form a belief as to any of the allegations in said amended complaint ”, except, etc., was not a denial of it. It was a frivolous denial in respect of it. If the notice was filed it was in a public. office of the city, and the city is therefore presumed to have knowledge wdiether it was filed or not. In such a case such a denial is not permissible (Rochkind v. Perlman, 123 App. Div. 808; Purdy v. City of New York, 126 id. 320; City of New York v.. Matthews, 180 N. Y. 41).

The judgment should be reversed.

Woodward, Hooker, Rich and Miller, JJ., concurred. t

Judgment reversed and new trial granted, costs to abide the-event.

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Gaynor, J.:

The complaint was dismissed on the trial on the ground, that the plaintiff had failed to prove that she had filed with the corporation counsel notice of intention to commence the action as required by chapter 572 of the Laws of 1886. There was no such issue. It was alleged in the 18th subdivision of the amended complaint that such notice had been filed. There was no denial of this in the answer. The denial that the defendant “ has any knowledge or information sufficient to form a belief as to any of the allegations in said amended complaint ”, except, etc., was not a denial of it. It was a frivolous denial in respect of it. If the notice was filed it was in a public. office of the city, and the city is therefore presumed to have knowledge wdiether it was filed or not. In such a case such a denial is not permissible (Rochkind v. Perlman, 123 App. Div. 808; Purdy v. City of New York, 126 id. 320; City of New York v.. Matthews, 180 N. Y. 41).

The judgment should be reversed.

Woodward, Hooker, Rich and Miller, JJ., concurred. t

Judgment reversed and new trial granted, costs to abide the-event.

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Bluebook (online)

128 A.D. 139, 112 N.Y.S. 549, 1908 N.Y. App. Div. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogart-v-city-of-new-york-nyappdiv-1908.

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