Olmstead v. Town of Pound Ridge

24 N.Y.S. 615, 78 N.Y. Sup. Ct. 25, 53 N.Y. St. Rep. 849, 71 Hun 25

Opinion

[BARNARD, P. J.

The complaint is framed to recover damages for a neglect to keep a 'highway in the town of Pound Ridge in proper repair by the commissioners of highways of the town. The accident is alleged to have occurred by the neglect of the commissioners, and without any neglect upon plaintiff’s part, on the 25th of March, 1892. The complaint contains no averment that the claim was served upon the supervisor of the town within 6 months after the cause of action accrued, nor that 15 days had elapsed after the claim was so presented before the action was commenced, according to the requirement of section 16, c. 568, Laws 1890. The complaint was dismissed for this defect at the opening of the trial. The law in question simply imposed a condition which affected the remedy, and is subject to no objection. Morse v. Goold, 11 N. Y. 281; In re Palmer, 40 N. Y. 561. It was necessary to aver the performance of the conditions precedent in the complaint. This defect in the complaint can he raised at any stage of the action. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792. The judgment should be affirmed, with costs.