Duff v. Mayor of New York

15 N.Y.S. 863, 1891 N.Y. Misc. LEXIS 165

Opinion

Per Curiam.

We are disposed to apply the reasoning in Meyer v. Mayor, etc., 14 Daly, 395, and Denair v. City of Brooklyn, (City Ct. Brook.) 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 oilier than sucli as is conveyed by the service of a summons and complaint should lie required to be tiled in cases where the action is brought within six months of the time when the cause of action accrued. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792, and Babcock v. Mayor, etc., (Sup.) 9 N. Y. Supp. 368, 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. All concur.