Duff v. Mayor of New York

28 Jones & S. 29, 40 N.Y. St. Rep. 230, 60 N.Y. Sup. Ct. 29

Opinion

Per Curiam.

We are disposed to apply the reasoning in Meyer v. The Mayor, et al., 14 Daly, 395, and Denair v. The City of Brooklyn, 5 N. Y. Supp., 835, to the facts of this case.

The intent of the legislature must be sought, and governs. The act of 1886 and surrounding circumstances cause the opinion that it was not the legislative intent that a notice of intention other than such as is conveyed by the service of a summons and complaint should be required to be filed in cases where the action is brought within six months of the time when the cause of action accrued. Reining, et al., v. The City of Buffalo, 102 N. Y., 308, and Babcock v. The Mayor, et al., 56 Hun, 196, are distinguishable from the present case. In the Babcock case the action was commenced more than six months after the accident happened.

Plaintiff’s exceptions should be sustained, the order of dismissal vacated and a new trial ordered, with costs to abide the event.