Cahill v. City of Rochester

96 A.D. 557, 89 N.Y.S. 67

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1904
• Status: Published

Opinion

Stoves, J.:

In the passage of the White charter the Legislature intended to effect a uniform system- for the government of second-class cities. By the provision of section 461 of said charter (as amd. supra) it intended to make a uniform regulation as to notice of defective conditions. It by the saving clause used the words “Nothing contained in this section shall be held to repeal or modify any existing requirement'or Statute of Limitations,” and it may be well said that by that was meant any other requirement than notice as to conditions or Statute of Limitations. Reading in this light it would seem that the old provision of the charter, which required actual notice, was abrogated by the. statute; and this would seem to be a reasonable construction of the statute. Having in mind the idea of uniformity in regulations with reference to municipalities, it is not unreasonable, I think, to say that' the Legislature intended to have uniformity of notice as to defects in sidewalks, but did not intend to do away with other features of the law which did not affect the notice either actual or constructive, as to defective conditions. This does not conflict with that provision of section 461 (supra) which requires that the provisions of said section shall be an additional requirement .to those already furnished. To say that either actual or constructive notice was in addition to the requirement of a statute which required that actual notice must be given before a liability can be incurred, would fender that provision of no effect Whereas, to say that wherever there was an additional requirement beyond the.notice which was still left in force, so far as the notice of defective conditions is concerned, the provisions of the White charter are not inconsistent. To reiterate, if-there were only conditions in previous legislation as to defective conditions, that legislation was merged and repealed by the enactment of the White charter. If in addition to defective conditions there was some other special requisite of the charter, that was still left unrepealed, leaving the provisions of the White charter applicable to all municipalities, and in addition thereto any such municipalities as had special legislation which was not legislated upon, such special legislation was not affected.

All concurred.

Judgment and order affirmed, with costs.