#### Moe Frank, Appellant, *v.*The City of New York, Respondent.

(Supreme Court, Appellate Term,

February, 1912.)

Municipal corporations — Notice or presentation, audit and allowance of claims — Necessity of notice or presentment of claim — Verification of claim.

The filing of a verified claim with the comptroller of the city of New York as required by section 261 of the Greater New York charter is a condition precedent to' a right to maintain an action against the city for injuries to a horse alleged to have been caused by the negligence of the defendant.

That plaintiff was examined as to the circumstances of the accident after the' service of an unverified claim which was not returned was not a waiver of the defendant’s right to object to it as defective.

The words “ verified statement” as used in said section 261 do not refer to a verification of plaintiff’s claim upon his examination before the comptroller under section 149 of the charter, but relate to the separate and distinct statement which a claimant is required to file showing in detail the property alleged to have been damaged or destroyed arid the value thereof.

Appeal • by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, dismissing the complaint.

Emanuel Jacobus, for appellant.

Archibald R. Watson, corporation counsel (Loyal Leale, of counsel), for respondent.

Sbabhry, J.

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 *473statement ” 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 Few 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 Few 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 App. Div. 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 veri*474fled/ 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.

Gérard and Hotchkiss, JJ., concur.

Judgment affirmed, with costs.