Munroe v. Booth

New York Court of Appeals

Munroe v. Booth

113 N.E.2d 546, 305 N.Y. 426

New York Court of Appeals·Decided June 5, 1953·Published·Cited by 30 cases

Opinions

Per Curiam.

A reversal would be justified in this ease only if the court were to ignore the plain command of the applicable statutes that the essential notice of claim must be served upon a “ member of the board of education, * * * [a] trustee, or the clerk thereof ” (Civ. Prac. Act, § 228, subd. 6; General Municipal Law, § 50-e). Concededly, there was a complete failure to obey or comply with that mandate.

Mrs. Hardy, with whom the paper was left, was neither a member of the board of education nor “ the clerk ” of that board. And since, even on her own say-so, she had received only ‘ ‘ about three ’ ’ papers over a period of ten years, her acceptance of them on those prior occasions means little, if anything-. Certainly, it was not sufficient to cloak her with authority to act for the board and, obviously, not enough to render her a member of the board or its clerk.

Desirable though relaxation of statutory provisions relating to service may appear, to avoid a seemingly harsh result, the courts may not disregard clear and explicit requirements imposed by the legislature. In fact, that body, when providing that certain defects on the face of the notice itself could be rectified, was careful to exclude the correction of any irregularity 1 ‘ pertaining to the manner * * * o/ service thereof ’ ’ — the precise situation here — unless the requisite notice was “ actually received ” by an authorized person (General Municipal Law, § 50-e, subds. 3, 6). It was in keeping with that legislatively declared policy that we recently held sufficient and proper the sending of a notice of claim by ordinary mail, even though the statute prescribed that it be forwarded by a ‘ registered ” letter. (See Teresta v. City of New York, 304 N. Y. 440.)

The legislature having spoken unequivocally, the court may not disregard its pronouncement and, contrary to it, dispense [429] with the requirement that the notice of claim he served upon one of the persons designated.

The judgment of the Appellate Division should be affirmed, with costs.

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Per Curiam.

A reversal would be justified in this ease only if the court were to ignore the plain command of the applicable statutes that the essential notice of claim must be served upon a “ member of the board of education, * * * [a] trustee, or the clerk thereof ” (Civ. Prac. Act, § 228, subd. 6; General Municipal Law, § 50-e). Concededly, there was a complete failure to obey or comply with that mandate.

Mrs. Hardy, with whom the paper was left, was neither a member of the board of education nor “ the clerk ” of that board. And since, even on her own say-so, she had received only ‘ ‘ about three ’ ’ papers over a period of ten years, her acceptance of them on those prior occasions means little, if anything-. Certainly, it was not sufficient to cloak her with authority to act for the board and, obviously, not enough to render her a member of the board or its clerk.

Desirable though relaxation of statutory provisions relating to service may appear, to avoid a seemingly harsh result, the courts may not disregard clear and explicit requirements imposed by the legislature. In fact, that body, when providing that certain defects on the face of the notice itself could be rectified, was careful to exclude the correction of any irregularity 1 ‘ pertaining to the manner * * * o/ service thereof ’ ’ — the precise situation here — unless the requisite notice was “ actually received ” by an authorized person (General Municipal Law, § 50-e, subds. 3, 6). It was in keeping with that legislatively declared policy that we recently held sufficient and proper the sending of a notice of claim by ordinary mail, even though the statute prescribed that it be forwarded by a ‘ registered ” letter. (See Teresta v. City of New York, 304 N. Y. 440.)

The legislature having spoken unequivocally, the court may not disregard its pronouncement and, contrary to it, dispense [429] with the requirement that the notice of claim he served upon one of the persons designated.

The judgment of the Appellate Division should be affirmed, with costs.

Munroe v. Booth, 113 N.E.2d 546, 305 N.Y. 426 (N.Y. 1953).

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113 N.E.2d 546 (Munroe v. Booth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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