Sayfaus v. City of Rochester

113 N.Y.S. 840

• Court: New York Supreme Court
• Decided: December 14, 1908
• Status: Published

Opinion

CLARK, J.

This is an action brought by the plaintiff to recover damages she claims to have sustained by reason of falling on a sidewalk in the city of Rochester, where there was an unusual accumulation of ice and snow, which the defendant had negligently permitted to form and remain on the sidewalk in a public street. The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Section 255 of the charter of the city of Rochester is as follows :

“City Not Liable Without Notice.—The city is not liable, and no action is maintainable against it for an injury to person or property caused by the existence of snow and ice, or either, upon any sidewalk, roadway, public street, highway or place, bridge, culvert or crosswalk, unless written notice thereof relating to the particular place has been given to the commissioner of public works a reasonable time before the happening of any such injury.”

It was conceded upon the argument that no written notice of the condition of the sidewalk in question was ever given to the city officials, as required by the section of the city charter above quoted, and, of course, there was no allegation in the complaint that such notice had been given. The complaint, therefore, does not state facts sufficient to constitute a cause of action. MacMullen v. City of Middletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391. It being conceded that the written notice as required by the city charter was not given, and the charter providing that the city would not be liable in a snow and ice case where such notice was not given, it is plain that this action cannot be maintained.

The demurrer is therefore sustained, and final judgment is directed in favor of the defendant, with costs.