Opinion
October 16, 1908.
Frank J. Dupignac, for the appellant.
Theodore Connoly [ Thomas F. Noonan and Francis K. Pendleton with him on the brief], for the respondent.
The complaint was dismissed on the trial on the ground that the plaintiff had failed to prove that she had filed with the corporation counsel notice of intention to commence the action as required by chapter 572 of the Laws of 1886. There was no such issue. It was alleged in the 18th subdivision of the amended complaint that such notice had been filed. There was no denial of this in the answer. The denial that the defendant "has any knowledge or information sufficient to form a belief as to any of the allegations in said amended complaint", except, etc., was not a denial of it. It was a frivolous denial in respect of it. If the notice was filed it was in a public office of the city, and the city is therefore presumed to have knowledge whether it was filed or not. In such a case such a denial is not permissible ( Rochkind v. Perlman, 123 App. Div. 808; Purdy v. City of New York, 126 id. 320; City of New York v. Matthews, 180 N.Y. 41).
The judgment should be reversed.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.