Summary
In Place v. City of Yonkers (43 App. Div. 380) the notice of claim was "severe and permanent injury to my head and body."
Summary of this case from Schorr v. New York City Housing AuthorityOpinion
October Term, 1899.
James M. Hunt, for the appellant.
Joseph F. Daly, for the respondent.
On the evening of August 26, 1897, the plaintiff, a boy of thirteen years, was running along the sidewalk of Elm street, in the city of Yonkers, when he struck a rope extending across the sidewalk, fell over it and received injuries, for the recovery of damages for which he brings this action. The jury rendered a verdict for $1,500, and from the judgment entered thereon and the order denying the motion for a new trial the defendant appeals.
The defendant contends that no negligence on its part was established; that the plaintiff was not entitled to recover for damage to his eye, and that he had not given legal notice of his claim to the defendant corporation.
The facts to establish the defendant's negligence were as follows: There had been a fire in the Sheather building in July, but the front wall was left standing, and in order to prevent accidents to passers-by the defendant had erected a barricade at each end of the front of the building and along the gutter. At the west end, where the plaintiff fell, the barricade consisted of a rope stretched across the sidewalk, about two or three feet above the ground, and extending from the gutter to the building. There was no signal light on this barricade, but it was about midway between two electric are lamps, the nearer one being about one hundred and twenty-five feet away. There was much conflicting evidence as to the visibility of the rope.
The defendant's counsel, in his brief, stated no specific point as to any contributory negligence on the part of the plaintiff, though this point was raised at the trial, and, indeed, it is difficult on the evidence to see how he could make any such contention. At any rate, as the question was submitted to the jury, we must assume, in view of the evidence, that the verdict establishes this fact in favor of the plaintiff.
In the charge the court fairly stated that it was legal and commendable for the city to place the rope as a barrier against apprehended danger from an insecure building; that the city was not bound to take extraordinary precautions, but was bound to do only what prudence and ordinary care suggested and required, and left it to the jury to decide whether the city had used reasonable care in maintaining it. The city's negligence in this respect is established by the verdict in favor of the plaintiff.
We come now to the main controversy, whether the defective eyesight of the plaintiff was the result of his fall. There was evidence tending to prove that his eyes were good before the accident. He fell over the rope and was found insensible, the rope being across his middle, his legs on one, and his head on the other side of the rope and on the sidewalk. He had received a severe blow and wound upon the left side of his forehead, midway between the hair and eyebrow. There was expert evidence tending to show that the blow might result in precisely the injury to his eye with which he is suffering, and there was other expert evidence to contradict it. We must assume, therefore, that the verdict in this respect is correct.
The defendant contends that no sufficient notice of the plaintiff's claim, under the provisions of the charter, was given to the city before the commencement of this action. This contention is based on the fact that the claim does not specify the injury to the eye, and that it was not duly verified. The claim was for "severe and permanent injury to my head and body of $5,000." The charter of the city of Yonkers, as revised by chapter 635 of the Laws of 1895 (§ 6, tit. XII) requires a notice "describing the time and location of the place where such injury occurred, cause and extent of the damage or injury." The object of such provisions in municipal charters is to give the city opportunity, for the protection of the treasury, to investigate such claims. The notice is sufficient if it gives particulars which will enable the city to perform this public duty, and we cannot see why the notice in question did not perform this function. How can it be said that a statement of injury to the head does not embrace an injury to the eye?
The defendant's counsel contends that this statute is to be strictly construed, citing Sheehy v. The City of New York ( 29 App. Div. 263). That decision was based mainly on the fact that the notice did not express any intention to sue the city, as required by the Consolidation Act, and this was held to be a fatal defect. The defendant's charter has no such requirement. The court cited three authorities in support of a strict construction of the act, all of which relate, not to the contents of the notice, but to the question of its proper service on the city. No such question arises here. We have been unable to find any authority which requires such a strict construction of the statute as to insist upon more than a statement of facts sufficient to give the city ample opportunity to ascertain the circumstances. The present notice meets that requirement.
The city also contends that the notice is not properly verified. The notice itself was signed by the plaintiff, but the verification was not signed by him, although it began with his name. The notary's certificate that the plaintiff was sworn is a sufficient verification. ( Haff v. Spicer, 3 Caines, 190; Jackson v. Kenyon, 3 Johns. 540.) On the trial also the notary testified that the plaintiff was actually sworn.
The objection that the court at the trial allowed the complaint to be amended so as to increase the amount of alleged damages, is not very substantial, as the plaintiff received less than the original demand.
The judgment should be affirmed.
Judgment and order unanimously affirmed, with costs.