Klingenberg v. City of New York

Appellate Division of the Supreme Court of New York

Klingenberg v. City of New York

164 A.D. 718, 150 N.Y.S. 199, 1914 N.Y. App. Div. LEXIS 8466

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

DecidedNovember 20, 1914

StatusPublished

Cited by1 cases

This text of 164 A.D. 718 (Klingenberg 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.

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Klingenberg v. City of New York, 164 A.D. 718, 150 N.Y.S. 199, 1914 N.Y. App. Div. LEXIS 8466 (N.Y. Ct. App. 1914).

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Opinions

Jenks, P. J.:

Taking into consideration the two former actions, I think that upon this record the plaintiff was entitled to recover in this action for the usable value of his lands from August 26, 1910, to March 1, 1912, exclusive of the period from March to-November, 1911. As I read the record he recovered in his first action for such value up to August 26, 1910, and in his second action for the said period of months which I would exclude.

The first action was begun on August 17,1911, but the period of recovery therein was limited by the court to the said August 26, 1910, the day of the service of the notice of claim upon the defendant pursuant to section 261 of the Greater New York charter. (See Laws of 1901, chap. 466, § 261, as amd. by Laws [719]*719of 1907, chap. 677; since amd. hy Laws of 1912, chap. 452.) The learned corporation counsel insists that there can he no recovery in this action for any period prior to the time of the commencement of the first action, because the plaintiff could have recovered in the first action the damages up to that time under the rule announced in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98) and Pond v. Metropolitan E. R. Co. (112 id. 186). But I think that the said charter provision is in limitation of the general rule. This provision is to afford the city opportunity for investigation and adjustment without litigation. And incidentally it is in further assurance of the prompt payment of a just claim. If the period of recovery upon such a claim were not limited by the time of filing thereof, but only by the time of the commencement of the action, then necessarily for thirty days and for any other period that intervened the filing of the claim and the beginning of the action there could not be notice to the city, and, consequently, no opportunity for the investigation and adjustment contemplated by the statute. In fine, no claim is filed that covers at least the period of thirty days, and possibly a much longer period.

I advise that the judgment be reversed and that a new trial be granted, costs to abide the event.

Rich and Stapleton, JJ., concurred; Burr and Thomas, JJ., each concurred in a separate memorandum.

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Jenks, P. J.:

Taking into consideration the two former actions, I think that upon this record the plaintiff was entitled to recover in this action for the usable value of his lands from August 26, 1910, to March 1, 1912, exclusive of the period from March to-November, 1911. As I read the record he recovered in his first action for such value up to August 26, 1910, and in his second action for the said period of months which I would exclude.

The first action was begun on August 17,1911, but the period of recovery therein was limited by the court to the said August 26, 1910, the day of the service of the notice of claim upon the defendant pursuant to section 261 of the Greater New York charter. (See Laws of 1901, chap. 466, § 261, as amd. by Laws [719]*719of 1907, chap. 677; since amd. hy Laws of 1912, chap. 452.) The learned corporation counsel insists that there can he no recovery in this action for any period prior to the time of the commencement of the first action, because the plaintiff could have recovered in the first action the damages up to that time under the rule announced in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98) and Pond v. Metropolitan E. R. Co. (112 id. 186). But I think that the said charter provision is in limitation of the general rule. This provision is to afford the city opportunity for investigation and adjustment without litigation. And incidentally it is in further assurance of the prompt payment of a just claim. If the period of recovery upon such a claim were not limited by the time of filing thereof, but only by the time of the commencement of the action, then necessarily for thirty days and for any other period that intervened the filing of the claim and the beginning of the action there could not be notice to the city, and, consequently, no opportunity for the investigation and adjustment contemplated by the statute. In fine, no claim is filed that covers at least the period of thirty days, and possibly a much longer period.

I advise that the judgment be reversed and that a new trial be granted, costs to abide the event.

Rich and Stapleton, JJ., concurred; Burr and Thomas, JJ., each concurred in a separate memorandum.

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164 A.D. 718, 150 N.Y.S. 199, 1914 N.Y. App. Div. LEXIS 8466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klingenberg-v-city-of-new-york-nyappdiv-1914.

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