#### THRALL v. VILLAGE OF CUBA.

(Supreme Court, Appellate Division, Fourth Department.

November 17, 1903.)

1. Personal Injuries—Village—Pleading.

Under Laws 1897, p. 453, c. 414, § 322, providing that no action shall be maintained against a village for injuries, unless a verified claim shall have been filed and 30 days elapsed thereafter, the complaint must allege that 30 days elapsed after the filing of the claim before the commencement of the action.

3. Same.

In an action against a village for injuries, the defendant may, without demurring, take advantage of the failure of the complaint to state that 30 days had elapsed, as provided by law, since the filing of a verified claim, before the commencement of the action, since such a complaint does not state a cause of action.

McLennan, P. J., dissenting.

¶ 1. See Municipal Corporations, vol. 36, Cent. Dig. §§ 1715, 2203.

Appeal from Trial Term, Allegany County.

Action by Brigham N. Thrall against the village of Cuba. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

J. C. Leggett, for appellant.

Stanley C. Swift, for respondent.

SPRING, J.

The plaintiff was injured by falling upon a defective sidewalk in the village of Cuba. The negligence of the defendant and the freedom from contributory negligence of the plaintiff were questions of fact decided by the jury, and we are not inclined to interfere with their verdict on the questions submitted to them.

*662Section 322 of the village law (chapter 414, p. 453, Laws 1897) provides that:

> “No action shall be maintained against a village for damages for a personal injury * * * alleged to have been sustained by reason of the negligence of the village * * * unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless [a verified statement of the claim] shall have been filed with the village clerk within six months after the cause of action shall have accrued.”

And then continues:

> “An action on such a claim shall not be commenced until the expiration of thirty days after it is presented.”

- The complaint by appropriate allegations set out the filing of such statement and that one year had not elapsed since the cause of action accrued; but it contains no averment that thirty days intervened the presentation of the claim, and the commencement of the action. Is this requirement a condition precedent ? If so, it must be alleged and proved. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792. Howland v. Edmonds, 24 N. Y. 307; Am. and Eng. Ency. of Pr., vol. 4, 628.

The Legislature, for the protection of villages, and to give an opportunity for the investigation of alleged claims against them, has made certain preliminaries prerequisite to the maintenance of an action on any such claim. One is the due presentation or filing of the claim with the proper officer, another is the commencement of the action within one year after the cause of action has ripened, and still another that thirty days must expire after the filing of the claim be- • fore the action may be commenced. These are steps in the procedure imposed upon, the claimant deemed to be salutary for the security of the village against any demand for personal injuries, in order that a proper examination of the facts composing the claim may be had. The due presentation of the claim is no more essential as a precedent step to the maintenance of the action than the lapse of thirty day,s thereafter. The one informs the proper authorities of the existence of the claim; the other furnishes it the opportunity to adjust It, ascertain whether valid or fictitious, whether open to. defense, and, in fact, to give whatever investigation may be deemed advisable. Each requirement must have been met before the plaintiff may commence his action at all. They are at the threshold of the maintenance of his action. The omission to fulfill any one of them bars an attempt to enforce his demand.

In the Reining Case, supra, there was up for review a provision of the charter of the city of Buffalo closely analogous to the one in the village law, and reading as follows:

> “No action to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been -presented to the common council in the manner and form provided.”

There was no allegation in the complaint covering this requirement, and the city demurred. The Court of Appeals decided the demurrer was well taken. The court held that this prohibition was not a defense, “but-expressly .forbids the institution of any suit until the pre*663liminary requirements have been complied with.” The court further say:

> “It is not, in such a case, necessary that the thing required should constitute one of the elements of a common-law action; for, if the Legislature have made even a step in their remedy a condition of is prosecution, it is essential, not only that it should he taken, but that it should be affirmatively alleged and proved by the plaintiff. * * * It is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exist by force of some principle of common or statute law. The complaint must, by the settled rules of pleading, state every fact essential to the cause of action, as well as those necessary to give the court jurisdiction to entertain the particular proceeding.”

To the same effect are Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80; Olmstead v. Town of Pound Ridge, 71 Hun, 25, 24 N. Y. Supp. 615; Arthur v. Village of Glens Falls, 66 Hun, 136, 21 N. Y. Supp. 81; Porter v. Kingsbury, 5 Hun, 597, affirmed in 71 N. Y. 588.

The counsel for the respondent relies upon Westcott et al. v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300. That action was brought to recover of the defendant, as president of an express company, the value of a package of furs belonging to the plaintiff, and claimed to have been lost while in the custody of the defendant, who had undertaken to transport it from New York to the plaintiff at Utica. The receipt or contract, delivered to the consignor concurrently with the delivery of the goods, contained this clause:

> “This company will not be liable for any loss or damage, unless the claim therefor shall be made, in writing, within thirty days from the accruing of the cause of action, in a statement to which this receipt shall be annexed.”

There was no compliance with this stipulation in the contract. The court held it was not a condition precedent, but “in the nature of a statute of limitation, and should have been set up in the answer.” That was an action authorized by the common law to recover for property of the plaintiff which the defendant had failed to deliver in compliance with its agreement. The limiting stipulation was an attempt to restrict the liability of the defendant, and hence is distinguishable from cases against a municipality for negligence. In the latter class of cases the right to recover at all is derived from the Legislature, which surrounds the cause of action with certain features which must precede the commencement of the action. As was said in Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80 (at page 370, 135 N. Y., and page 81, 32 N. E.):

> “The whole matter of the maintenance of this class of actions was within the control of the Legislature. It could - refuse a right of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions. It could require notice of the intention to commence them to be served both upon the common council and upon the corporation counsel, and an act requiring one notice would not be inconsistent with an act requiring the other. Here the Legislature required the presentation of the claim to the common council for its action thereon, and the notice to the corporation counsel for his information and to govern and influence his official conduct. These actions against cities are numerous, and the Legislature seems to have been solicitous to protect them, so far as possible, against unjust or excessive claims, and also against the improvident or collusive allowance of such claims by municipal officers.”

*664Again, as was noted in the opinion in the Westcott Case, by the clause in the contract of the express company the 30 days’ limitation was from the date of the accruing of the cause of action. This implied that a cause of action had fully matured, and that the claim for it must be presented within the stipulated period. In the section quoted governing the commencement of actions against a village the lapse of the 30 days is one of the essential preliminaries to the cause of action. This defect in the complaint was made the ground of a motion for its dismissal at the commencement of the trial, which was denied. The question was again raised upon the motion for a non-suit, and also after all the evidence was in with like result. When the plaintiff endeavored to prove the date of filing the claim, objection was interposed upon the ground, among others, that the complaint did not allege that 30 days elapsed between its filing and the commencement of the action; but the objection was overruled and the proof taken. A like objection, was raised to showing the date of the commencement of the action. With the question thus frequently presented, the plaintiff elected to proceed without procuring an amendment to his complaint.

It is suggested that by an examination of the summons, complaint, and answer the court below might have ascertained that the required period had expired before the suit was commenced. These papers would not inform the court when the action was commenced, nor did they show the time when the injury was sustained. These were facts to be proven. The question here is as to the sufficiency of the complaint, viewed as of the time of the commencement of the trial. We are not to indulge in speculation or an analysis of the evidence received under objection for the purpose of curing the defective complaint.

It is also urged that the court below might have amended the complaint. It is sufficient answer to say that no such amendment was in fact made, and none was asked for. It would be quite an extraordinary exercise of our discretion to amend the complaint now, and inject into it this essential allegation, after the plaintiff elected to go on with his action, and when he is still insisting his complaint is sufficient. The complaint did not state a cause of action, and it was not necessary for the defendant to demur; but advantage could be taken of the omission at any time. People v. Terre Haute Car Mfg. Co., 107 N. Y. 61, 13 N. E. 592. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide the event.

WILLIAMS, HISCOCK, and STOVER, JJ., concur.

McLENNAN, P. J. (dissenting).

The sole ground suggested in the prevailing opinion upon which the judgment and order appealed from should be reversed is that the trial court erred in refusing to dismiss the complaint at the opening of the trial, because it was not alleged therein, that thirty days had elapsed before the bringing of the action and after the service upon the village clerk of a notice of plain*665tiff's claim. It was alleged in the complaint in express terms that the accident occurred on the 25th day of October,- 1900, that the notice was served upon the village clerk within six months after the time of the accident, and that the action was brought within one year from that time. If the date of the commencement of the action had been stated in the complaint, to wit, July 3, 1901, concededly the allegation would have been sufficient. The summons was dated July 2, 1901, the complaint was verified on that day, and the answer was verified on the 20th day of the same month. It seems to me that with the pleadings before the court, which disclosed those dates, it was permissible for the trial court to take judicial notice of the fact that the action was commenced between the 2d day of July, 1901, the date of the verification of the complaint, and the 20th day of July, 1901, the date of the verification of the answer; and, if it was competent for the court to take cognizance of those facts, then the motion to dismiss the complaint was properly denied.

As we have seen, it was alleged that the accident occurred on the 25th day of October, 1900, and that the notice required by the statute was served within six months from that time. Therefore it was served not later than the 25th day of April, 1901. The action having been commenced .in July, 1901, as appears by the summons, complaint, and answer, which were before the court, it is clear that the thirty days mentioned in the statute had elapsed after the service of such notice and before the commencement of the action. The plaintiff proved, before he rested his case, that the action was actually commenced on the 3d day of July, 1901, and the defendant gave no evidence to contradict the fact. We think it is not essential that there should be an allegation in the complaint to the effect that the action was commenced at a particular time, when the fact, as we have seen, clearly and distinctly appeared by the pleadings in the case. At most, the court should have required an amendment of the complaint, and its failure to do so, if that was necessary, was merely an irregularity, which was in no manner prejudicial to the defendant, and therefore should not be regarded as sufficient cause for the reversal of the judgment and order appealed from.

In 1 Encyclopædia of Pleading and Practice, p. 581, the rule is stated as follows:

> “An amendment to conform to the proof is usually made after the evidence is closed; hut it may be made after the argument of counsel, or after verdict or judgment, but only for the purpose of sustaining the judgment, not to reverse it, or in the appellate court the amendment may be regarded as made.”

In Harris v. Tumbridge, 83 N. Y. 92, 38 Am. Rep. 398, Judge Finch, writing the opinion of the court, at page 97, 83 N. Y., 38 Am. Rep. 398, said:

> “In that respect the complaint was amended by the General Term so as to make it correspond with the actual facts of the contract as developed by the evidence. The power of the court to make such amendment is conceded in a proper case, but claimed to have been improperly exercised in this. Practically the only limitation upon the right to amend the pleadings is that a new cause of action must not be introduced. Code Civ. Proc. § 723; Reeder v. Sayre, 70 N. *Y.*180 [26 Am. Rep. 567], The amendment did not effect such a result. The cause of action for negligence and want of skill in the per*666formance by the defendant of his duty as agent remained unchanged. A misstatement of the details of the contract was all that was changed, and it was stricken out from the pleading as unnecessary to the cause of action stated, and to some extent inconsistent with it. If the order granting-the amendment te reviewable on this appeal, which admits of question, we see no reason to doubt its correctness and propriety.”

In Reeder v. Sayre, 70 N. Y. 181, 26 Am. Rep. 567, the headnote is as follows:

> “Also, held, that the complaint should have been amended by averring the character or rights in which the surviving plaintiffs continued the action, i. e., as survivors; but, as this amendment should have been made on the trial, it could not be done here nunc pro tunc.”

In Gunter v. Gatlin, N. Y. 11 Leg. Obs. 209, cited with approval in Clark v. Dales, 20 Barb. 67, it was said:

> “We have now, indeed, a large discretion in amending pleadings, so as to conform them to the facts of the case as disclosed by the evidence, and we have not unfrequently exercised this power at a General Term, even where no motion to amend had been made upon the trial.”

In Pratt v. Hudson Railway Co., 21 N. Y. 305, the headnote is as follows:

> “The complaint counting upon the offer and acceptance, without any reference to the provision for a written contract, the variance is merely formal, and this court will conform the pleadings to the proof to sustain a judgment for the plaintiff.”

Many other cases might be cited in support of the proposition that, for the purpose of sustaining a .judgment, it is ,the duty of the appellate court to regard a pleading amended so as to conform to the proofs, where the variance is merely formal.

The judgment and order should be affirmed, .with costs.