(77 Hun, 33.)

#### WERNER v. CITY OF ROCHESTER.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Municipal Corporations—Presentation op Claim.

Under a city charter providing that no claim against the city for damages caused by negligence shall be received for audit unless made out in detail, specifying “when, where and how occasioned,” a claim is sufficient where it states that, on a certain evening, claimant’s buggy was overturned by coming in contact with a pile of dirt in the middle of a street at a point about one-third of a mile east from a certain railroad; that claimant was thrown to the ground, and rendered unconscious by the fall; that the exposure during unconsciousness caused a severe sickness; that his buggy and harness were broken; and that he claims $200 for personal injuries, and $20 for damages to his buggy and harness.

2. Same—Averment op Negligence.

The claim need not aver negligence on the part of the city, as the charter does not require such allegation.

8. Same—Time op Presenting Claim.

Rochester city charter provides that no action shall be brought against the city until the expiration of 40 days after the claim shall have been presented to the common council; that all actions against the city for negligence shall be commenced within one year “from the time of the receiving the injuries or when the cause of action * * * shall have accrued;” that no action shall lie against the city for personal injuries unless notice of intention to sue shall have been filed with the city counsel within six months after such “cause of action shall have accrued.” *'Held,*that the notice of intention to sue must be given within six months after the expiration of 40 days from the presentation of the claim, but before the expiration of one year from the time the injuries were received.

Appeal from Monroe county court.

Action by George Werner against the city of Rochester for personal injuries, and for injury to property. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

C. D. Kiehel, for appellant.

Heman W. Morris, for respondent.

HAIGHT, J.

This action was brought to recover damages for personal injury, and for injury to property. Section 80 of the charter of the city of Rochester, as amended by the Laws of 1890 (chapter 561), among other things, provides:

“The common council shall examine, settle and audit all accounts, demands and claims against the city. * * * No unliquidated claim or demand shall be received for audit unless made out in detail specifying, * * * if for damages for wrong or injury or negligence, when, where and how occasioned. * * * No action or proceeding to recover or enforce any claim, *227debt or demand against the city shall be brought until the expiration of 40 days after the claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid. * s: * All actions brought against the city to recover damages or other relief for injuries to the person or property caused by negligence shall be commenced within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued. No action or proceeding shall be maintained against the city for personal injuries unless the notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

The plaintiff claims to have presented a claim to the common council for audit on or about the 16th day of March, 1892, and another on or about the 1st day of August, 1892. The first notice of claim does not appear to have stated accurately the time and place at which the injury was received, and there may be some question as to whether it was ever presented to the common council for audit. We shall therefore confine our attention to the latter claim, the substance of which is as follows:

“On the evening of December 21, 1891, while driving along the Big Ridge road, my buggy was overturned, by coming in contact with a large pile of dirt in the middle of the street, at a point about one-third of a mile east of the Charlotte branch of the New York Central & Hudson River Railroad, as near as I can estimate the distance, and I was thrown to the ground. The buggy and harness were broken and damaged to the extent of $20.00. I was severely bruised and lamed, and was also rendered unconscious, by the fall, and remained in the street, in that condition, over an hour, and contracted a severe sickness from the exposure, and was confined to the house for several weeks, and put to considerable expense for medical attendance. I claim $200.00 for my personal injuries, which, with the damage to the buggy and harness, amounts to $220.00. The dirt had evidently been thrown up and left there by some one engaged in the construction of a sewer in the street. The night was very dark, and there were no guards or lights, of any kind, around the obstruction, to warn people of the danger. I am advised by counsel that my claim is a meritorious one, and I respectfully ask that your honorable body will allow it, and authorize its payment”

As we have seen, the statute requires that the claim presented for audit in case of injury shall state “when, where and how occasioned.” This statute should receive a reasonable construction. The time, place, and circumstances should be given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. ¡Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred. The claim presented by the plaintiff states that the injury was received on the evening of December 21, 1891; that the night was very dark; that there were no guards or lights, of any kind, around the obstruction; that he was rendered unconscious by the fall, and remained in the street, in that condition, over an hour. The claim further states that the dirt was in the middle of the street, at a point about one-*228third of a mile east of the Charlotte branch of the New York Central *&*Hudson River Railroad, as near as the claimant can estimate the distance. We think these statements are sufficiently definite as to the time and place.

It is further contended that the claim presented by the plaintiff for audit is defective for the reason that it does not allege any negligence on the part of the defendant, or of any person for whose acts the defendant would be liable, but we find no such requirement in the statute. As we have seen, it requires the claimant to specify the time, place, and how occasioned. The claim presented for audit is not intended or required to be the complaint in the action or to contain the allegations that would be required to be incorporated in such complaint.

It is charged that this claim was not properly presented to the common council for audit, but the plaintiff’s attorney testified that it was presented to the common council on the 1st day of August. He then offered it in evidence. Its reception was objected to as immaterial. It was received by the court, and marked an exhibit in the case. No objection appears to have been made upon the ground that it had not been properly or sufficiently proved that the claim had been presented to the common council for audit. We must therefore assume that further evidence upon that subject was waived.

It appears that the plaintiff served two notices of intention to commence an action for the injury sustained. One was served on the 1st day of August, 1892, and the other on the 24th of September, 1892. The first was seven months and eleven days after the injury was received, and the second, nine months and three days thereafter. As we have seen, the statute requires this notice of intention to be served “within six months after such cause of action accrued.” The question is thus presented as to when the cause of action accrued. Did it accrue at the time the plaintiff received the injury, or did it accrue after the expiration of 40 days after the presentation to the common council of the plaintiff’s claim for audit? In determining this question, we should, so far as possible, harmonize the various provisions of the act. No time is specified within which the claim must be presented to the common council. No action, however, can be brought upon the claim until after the expiration of 40 days after such presentation; and all actions brought for such damages must be commenced “within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued,” and no action shall be maintained unless notice of intention shall have been filed within six months after such cause of action shall have accrued. We thus have two statutes of limitation, which may be properly designated as the “one-year limitation” and the “six-months limitation.” In the former the action must be commenced within one year “from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued." We thus have the two expressions connected with the disjunctive “or.” If the former expression is to be disregarded, and the latter followed, *229the effect would be to nullify the provision, and leave no limitation whatever; for, as we have seen, no limit of time is placed upon the presentation of the claim to the common council, and no action can be maintained until 40 days thereafter. So that a claim could be presented to the council one, five, or ten years after the injury was received. We cannot, therefore, adopt this view. The two expressions, as used in this provision, must be understood, and were intended, to mean one and the same thing; and that is, that actions for injuries of the character described should be commenced within one year from the time of receiving the injuries, and the expression, “or when the cause of action mentioned in the complaint shall have accrued,” has reference to the time of such injury. It may be that the 40 days given to the common council, within which to audit and allow the claim, and during which time the statute prohibits the bringing of an action, should not be counted as a part of the year given, within which the action must be brought. Brehm v. Mayor, etc., 104 N. Y. 186, 10 N. E. 158. But this question is not involved, and is therefore not necessary for us to here determine, for this action was brought within the year. We are thus brought to the concluding provision of the statute referred to,—that of the notice of intention. In this provision we have the same expression, "after such cause of action shall have accrued.” Ordinarily, when we find the same expression used in various provisions of a statute, the same meaning should be given to each; and yet we hesitate to follow that rule in construing this provision, for that phrase, when used independent of another, referring to the same time, has a well-defined meaning, and to follow the construction given to the phrase in the former provision would in this destroy the harmony between this and other provisions. First, the statute requires the common council to examine, settle, and audit. Second, it requires a claim to be presented to them for audit. Third, they are given 40 days within which to determine the merits of the claim. All this has to be done before any action can be commenced, and, ordinarily, a cause of action has not accrued until it can be instituted. Again, the common council is composed of elective officers, whom the law presumes will discharge their duty. ITo reason is apparent why the notice of intention should be served during the time given to the common council to discharge its duty. It would rather seem impertinent to serve a notice containing a threat to commence a.n action while the common council was engaged upon a determination of the merits of the claim, in the discharge of its duty. But we think this provision is subordinate to the former provision, and in no case can it operate to extend the limitation given by that provision. It evidently contemplates that the claimant will, with reasonable promptness, present his claim to the common council; that, if the common council fails to audit and allow the same within 40 days thereafter, the claimant shall have the right to commence an action therefore; but before commencing such an action, and within six months from that time, and within the year given by the former and the general provision of limitation, notice of intention to commence such action must be filed with the counsel of the *230corporation, or other proper law officer. Steen v. Insurance Co., 89 N. Y. 315; Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 45; Hay v. Insurance Co., 77 N. Y. 235; Fisher v. Mayor, 67 N. Y. 73. The judgment and order appealed from should be affirmed.

LEWIS, J., concurs. DWIGHT, P. J., and BRADLEY, J., concur in the result