Foley v. Mayor

1 A.D. 586, 37 N.Y.S. 465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Rumsey, J.:

The action was brought to recover damages for injuries which plaintiff alleged she sustained by reason of the negligence of the defendant. The complaint did not allege that notice of an intention to commence the action had been filed with the counsel to the corporation within six months after the cause of action accrued, as required by chapter 572 of the Laws of 1886. Before any evidence was given the court dismissed the complaint on the defendant’s motion, it being conceded that no written notice had been filed, but that only oral notice had been given. An oral notice is not a compliance with the statute. When the law requires a notice to be filed, it implies that the notice shall be in writing. (Pearson v. Lovejoy, 53 Barb. 407, and cases cited.) A notice by word of mouth cannot be filed. The filing of the notice is a condition precedent to the existence of the cause of action. (Curry v. City of Buffalo, 135 N. Y. 366.) The fact of the filing must be set up m the complaint, or a cause of action is not alleged (Mertz v. City of Brooklyn, 33 N. Y. St. Repr. 577; affd., sub nom. Merz v. City of Brooklyn, 128 N. Y. 617).

There was no error at the trial term, and the motion for a new trial must be denied, and judgment for the defendant ordered on the verdict, with costs of the application and of the court below.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment ordered for defendant on the verdict, with costs of this application and of the court below.