Opinion
May 17, 1950.
Present — Taylor, P.J., McCurn, Love, Vaughan and Piper, JJ. [ 191 Misc. 906.]
Order reversed on the law, with $10 costs and disbursements, and motion to dismiss the complaints granted, with $10 costs, with leave to plaintiffs to serve amended complaints, if so advised, within twenty days from the entry of the order herein, upon payment of the costs of the motion and of this appeal. Memorandum: The Special Term was in error in holding that section 176 of the Charter of the City of Rome was inapplicable on the theory that the complaint alleged that the dangerous condition of the sidewalk was caused by the defendant and that therefore it was unnecessary to allege compliance with the charter provision as to notice prior to the accident. We think the complaint is not susceptible of such a construction. The charter provides in substance that the city shall not be liable for damages or injuries sustained by any person as a consequence of the defective or unsafe condition of any sidewalk unless at least forty-eight hours prior to the occurrence resulting in such damage or injury, actual notice of the defect and unsafe condition shall have been given to the common council of the city or to the commissioner of public works. Under the charter provisions referred to, the giving of notice is an essential part of plaintiffs' cause of action and a condition precedent to its maintenance and must be alleged. (See MacMullen v. City of Middletown, 187 N.Y. 37; Ellis v. City of Geneva, 259 App. Div. 502, 976, affd. 288 N.Y. 478, and Stedman v. City of Rome, 88 Hun 279.) All concur. (Appeals from order denying defendant's motion to dismiss plaintiffs' complaints in two negligence actions.)