Opinion
February, 1912.
Emanuel Jacobus, for appellant.
Archibald R. Watson, corporation counsel (Loyal Leale, of counsel), for respondent.
The action was brought to recover damages for an injury to a horse owned by the plaintiff alleged to have been caused by the negligence of the defendant. No verified claim was presented by the plaintiff to the comptroller of the city of New York, as required by section 261 of the Greater New York charter. The learned court below held that the failure of the plaintiff to present "a verified statement" was fatal to the plaintiff's right to recover, and rendered judgment in favor of the defendant, dismissing the complaint.
The single question presented for review upon this appeal is the correctness of this ruling. The requirement of section 261 of the Greater New York charter, that "a verified statement" shall be filed with the comptroller, is a condition precedent to the plaintiff's right to maintain the action. Curry v. City of Buffalo, 135 N.Y. 366.
The fact that, after the defective claim was served, the plaintiff was examined as to the circumstances of the accident to his horse and that the claim was not returned, did not establish a waiver of the right to object to the defective claim on the part of the defendant. Forsyth v. City of Oswego, 191 N.Y. 441.
The claim of the appellant that he was not required to verify his statement because he appeared before the comptroller and signed and swore to the examination taken by that officer under authority of section 149 of the Greater New York charter is untenable. The words "verified statement," as used in section 261, do not refer to a verification of the plaintiff's claim upon the examination conducted by the comptroller, but relate to a separate and distinct statement which a claimant is required to file, "showing in detail the property alleged to have been damaged or destroyed, and the value thereof." The case of Patterson v. City of Brooklyn, 6 A.D. 127, is in point and is decisive of the question presented for determination. In that case the court said: "We are of the opinion that the statute requires the statement to be sworn to, and that an affidavit of verification must be attached to it when presented to the comptroller. It is true that the comptroller is given power to examine the claimant, and that by so doing he may verify the claim; but the term 'verified,' as applied to pleadings and statements of this character, has a settled meaning in our statutory law, and it refers to an affidavit attached to the statement as to the truth of the matters therein set forth. That the Legislature, in requiring that the claim be 'duly' verified,' did not refer to a verification thereof by an examination of the complainant by the comptroller is clear from the plain language of the law."
It follows that the judgment appealed from should be affirmed, with costs.
GERARD and HOTCHKISS, JJ., concur.
Judgment affirmed, with costs.