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is justly due and owing to this deponent [or, to the firm of A. B. & Co., above-named, of which this deponent is a member], with
York statute. (Code Civ. Pro., 8 2718.) In using them in other jurisdictions, the statute of the State, if any, should be consulted in connection with them.
The statute applies to equitable and to contingent claims. Cornes v. Wilkin, 79 N. Y. 129, aff'g 14 Hun, 428; Skidmore v. Post, 32 Hun, 54. Also, to claims after the death, such as funeral expenses.
Koons v. Wilkin, 2 App. Div. 13, 37 N. Y. Supp. 640. But not to a claim already in suit against the decedent before his death, and which the plaintiff merely continues against the representatives. Lemen r. Wood, 16 How. Pr. 283; Benedict 1'. Cafie, 3 Duer, 669, 2 N. Y. Leg. Obs. 262.
It is no objection that the demand was presented before the executor or administrator advertised for claims. Field v. rield, 77 N. Y. 294.
After the publication time has passed, the creditor may still present his claim, and share in assets then still undistributed, but the personal representatives are not chargeable for any assets or money that they may have theretofore properly paid out or distributed. N. Y. Code Civ. Pro., $ 2718. And he cannot recover costs if an action is necessarily brought by him to enforce his demand. Id., § 1826; Horton v. Brown, 29 Hun, 654.
The form of the presentation is not prescribed, except that it is generally held that the claim should be presented in writing. See Matter of Morton, 7 Misc. 343, 28 N. Y. Supp. 82. Since the personal representative may demand both vouchers and the affidavit as given in this form (Code Civ. Pro., $ 2718), it is the usual practice for the attorney for the claimant to present them in the first instance.
Mere inaction on the part of the executor or administrator raises no presumption of the admission of the claim. Schutz r. Morette, 146 N. Y. 137; Jatter of Callahan, 152 id. 320; Matter of Pierson, 19 App. Div. 478, 46 V. Y. Supp. 557.
In case the representative rejects the clain, suit must be brought within
six months after the rejection. Code Civ. Pro., § 1822. If at least ten days before the expiration of this pe. riod of six months, the executor or administrator files in the Surrogate's Court a consent that the claim may be heard and determined by the surrogate on the accounting, the creditor cannot get costs if he sues unless he establishes that the claim was Uli reasonably resisted.” Id., § 1826.
Of course, to set this short statute of limitations running against the creditor, the rejection of the claim must be absolute and unequivocal. Hoy r. Bonnett, 50 N. Y. 538.
Personal service of the notice of rejection is not essential. Peters v. Stuart, 2 Misc. 257, 21 N. Y. Supp. 993. It may be served on an attorney who serves the notice of claim, and endorses thereupon his name as claimant's attorney. Lockwood v. Dillenbeck, 104 App. Div. 71, 93 N. Y, Supp. 321. Or it may be served on the clainant's agent by whom the claim was presented.
Gardner v. Pitcher, 109 App. Div. 106, 95 N. Y. Supp. 678.
By § 2718a (added L. 1904, chap. 356), a personal representative may compel any claimant to make choice of commencing action, or filing a consent, to a hearing by the surrogate, within three months from service of an order requiring him so to do, with penalty of his claim being barred upon failure to so elect.
82 Or may state substance of claim. For forms see Form 348 of this vol. ume. chapter on PROVISIONAL REMEDIES.
As to amount, etc., the affidavit is to be interpreted by reference to the voucher, bill of items, or statement of claim annexed. Hall v. Superior Ct. (Cal., 1886), 10 Pac. Rep. 257 (omission of word “dollars” from affidavit therefore disregarded).
If the claimant presenting a written evidence of debt desires to fall back on a previous obligation, or on the original consideration in case the instrument he presents should be impeached, he should at least give notice of it, if he does not state both. See Belleville Sav. Bank 1. Bornman (Ill. 1886), 7 N. E. Rep. 686.
interest from the day of
,83] that no pay ments have been made thereon [except as in said annexed claim stated), and that there are no off-sets against the same, to the knowledge of this deponent, and deponent is now the lawful owner and holder of said claim. [Jurat.]
[Signature.85] [Serve pursuant to the notice to present claims, if one has been published; otherwise serve personally.®]
FORM No. 278.
Demand for dower.87 To the holders and occupants of the lands and premises herein described. Take notice, that the undersigned, as widow of J. B., late of who died on the
19 , [now the wife of J. A.,) hereby demands her dower as such widow in the following described lands and premises, to wit: [full description]
And she hereby demands and claims that her dower in said lands and premises be admeasured and set apart [where the de'ceased owned only a share; to wit: her dower in the one undivided moiety or half part of said lands and premises, being the moiety whereof the said J. B. died seized and possessed.] [Date.]
[Signature.] 83 Specifying interest held not essen than his co-claimants. See Forms for tial in Fredenburg v. Biddlecome, 17 verification of pleadings. Wkly. Dig. 25.
86 A service upon one of two execu84 Where the statute does not re tors is sufficient. Lambert v. Craft, quire denial of offsets, the omission to 98 N. Y. 342. deny them is held no defect. Smith 87 Under N. Y. Code Civ. Pro., v. Denham, 48 Ind. 65.
1600. 85 If the affidavit is made by agent A grantee of the husband is liable or attorney, insert, in beginning, alle for damages for withholding dower gation that deponent is such (agent), only from the time of demand of and add, at end, statement of his dower; after demand made, the de. means of knowledge, and the reason fendant continues liable for accruing why the affidavit is not made by the damages notwithstanding he conveys party.
the land. Id. Price v. Price, 54 Hun, No statement of reason is neces. 349; 7 N. Y. Supp. 474. The trustees sary, however, in the case of an officer under the husband's will, and the verifying for the corporation.
beneficiaries although his children, These additions, however, are not are within this provision. Gorden r'. essential unless the executor or ad Gorden, 80 App. Div. 258, 80 N. Y. ministrator objects to the affidavit Supp. 241. that it is not the “ affidavit of the The commencement of the action claimant."
will entitle the widow to a computaIf the affidavit is by one of several tion of damages from that time, in joint claimants, state that deponent the absence of a prior demand. Golden is acquainted with the facts or that v. Golden, supra. he is equally or better so acquainted
NOTICE OF CLAIM TO MUNICIPAL CORPORATIONS, AND OTHER
1. Character of notice.]— Statutes of general application, or provisions in the charters of the various municipalities or public bodies, have been uniformly adopted requiring notice of the claim or demand to be promptly presented to or filed with a designated officer or board. While there is no unanimity in the details of these statutory requirements, the presentment of such notice is usually made a condition precedent to an action for damages being brought,” and the notice must contain such information concerning the claim, or the time and place of the injury, as to enable it to be accurately investigated by the authorities. If the claim is of such a character as to be incapable of presentation, e. g., a right to abatement of a continuing nuisance, the statute requiring presentation of the “ claim, debt or demand” will not apply.91
2. Form of notice.] – No form can be suggested that can be of general application. The particular statutes must, in all cases, be consulted, and the statutory requirements carefully followed. The forms which follow are suggestive, merely, and, although considered sufficient under the particular statutes referred to in each form as they now exist, are not to be followed until the practitioner has ascertained that no subsequent amendment has destroyed their sufficiency by adding to or changing present requirements.
The notice must emanate from the plaintiff or his agent. 92
3. Definiteness and accuracy required. The power given to the court to permit amendments to proceedings in an action does not authorize an amendment of this preliminary notice. 93
88 Actions for “personal injuries," under L. 1886, chap. 572, include actions for injuries causing death. The cause of action does not accrue until the appointment of the personal representative. Crapo v. Syracuse, 183 N. Y. 395.
89 Cra po r. Syracuse, 98 App. Div. 376, 90 N. Y. Supp. 553, rev'd on another point, 183 N. Y. 395.
Mailing a notice does not satisfy the requirement to file (Burford v. Mayor 26 App. Div. 225, 49 N. Y. Supp. 969), but meets a requirement of presentation when it was received by the official (Soper v. Greenwich, 48 App. Div. 354, 62 N. Y. Supp. 1111).
30 Beginning action on same day claim was presented is improper. Freligh v. Saugerties, 70 Hun, 589, 24 N. Y. Supp. 182.
91 Lamay v. City of Fulton, 109 App. Div. 424, 96 N. Y. Supp. 703. 92 Ruprecht v. New York, 102 App. Div. 309, 92 N. Y. Supp. 421. 93 Kleyle r. Oswego, 109 App. Div. 330, 95 N. Y. Supp. 879.
The time of the injury must be definitely stated;“on or about” such a date is not a compliance with the statute. 94
The place must also be located with substantial accuracy. 95
The cause of the injury need not be stated with the exactness of a pleading; it is sufficient if it fairly and reasonably apprise the officials of the accident and its attendant circumstances, so as to enable an investigation to be made.86
The amount of damages claimed in the notice is immaterial.
The nature and extent of the injuries need not usually be given, and, if stated when not required, may not be controlling.98 When required the usual rules as to accuracy of statement are applied. 99
4. Notice of intention to sue.]- In addition to the requirement of presentation of the claim for possible adjustment, a claimant is sometimes required to serve an additional notice upon the law officer of intention to sue on the claim. Compliance with this
94 Lee 0. Village of Greenwich, 48 App. Div. 391, 63 N. Y. Supp. 160. Contra, Murphy v. Seneca Falls, 57 App. Div. 438, 67 N. Y. Supp. 1013. A notice which specifies no date is fatally defective. Forsyth v. City of Oswego, 107 App. Div. 187, 95 N. Y. Supp. 33. Error of one day in the notice may be disregarded. Kleyle v. Oswego, 109 App. Div. 330, 95 N. Y. Supp. 879.
95 Describing the place of injury as "about half way between” two streets is sufficient, though the place be some 100 feet nearer one street, it appearing that the city authorities were not misled. Beyer v. Tonawanda, 183 N. Y. 338.
An error in stating the place as “between 164 and 166 West 131st St.," when it should have been between 264 and 266, was held to vitiate the notice, and that a correct description in the complaint did not cure. Learned v. New York, 21 Misc. 601, 48 N. Y. Supp. 142.
A description adapted to any place on a sidewalk one-half mile long, insufticient. Lee r. Village of Greenwich, supra.
So, of a sidewalk on a street about a quarter of a mile long. Rauber v. Wellsville, 83 App. Div. 581, 82 N. Y. Supp. 9.
“On the west side of B street, between W and H streets, and in front of or near premises owned or occupied by J. G.," sufficiently definite. Murphy r. Seneca Falls, supra. Duer street, near Bunner street," is not a sufficient description where the obstruction was 300 feet distant. Forsyth v. City of Oswego, supra.
96 McCarthy v. Syracuse, 96 App. Div. 566, 89 N. Y. Supp. 89. A notice insufficiently discloses the cause which states that the " injuries resulted from a defective and dangerous sidewalk and were caused by the negligence of the city.” Paddock 1. Syracuse, 61 Hun, 8, 15 N. Y. Supp. 387. That the death of plaintiff's intestate was caused “ by the breaking of an unsafe and defective bridge” is sufficient. Spencer 1. Sardinia, 42 App. Div. 472, 59 N. Y. Supp. 412. See, for further instances, Werner v. Rochester, 77 Hun, 33, 28 N. Y. Supp. 226, aff’d, 149 N. Y. 553; Saumby r. Rochester, 72 Hun, 489, 25 N. Y. Supp. 1136 (rev'd on another point, 145 N. Y. 81).
97 Minnick v. Troy, 19 Hun, 253, aff’d, 83 N. Y. 514; Reed v. Mayor, 97 N. Y. 620; Eggleston v. Chautauqua, 90 App. Div. 314, 86 N. Y. Supp. 279.
98 Eggleston v. Chautauqua, supra.
requirement is essential, and is not satisfied by presentation of the claim for adjustment to the fiscal officer. The city attorney, or an assistant in charge, may waive the notice.?
5. Time for filing notice.]— The term “ month” in the N. Y. Statutes means a calendar month; the day on which the injury occurred is not included in the computation.”
The disability of the claimant, resulting from the injury, is held to extend the period for the filing of the notice when the period would otherwise have passed and barred the action. Infancy of claimant does not extend time.5
FORM No. 279. Notice to City of New York of intention to sue for personal injuries. [Under 1901 Charter § 261; also, L. 1886, chap. 572.]
In the Matter of the Claim
of M. N. against the City of New
York, for personal injuries.
Please take notice that the undersigned intends to commence an action against the city of New York for damages for personal
1 See Pulitzer v. City of New York, 48 App. Div. 6, 62 N. Y. Supp. 587. Service of previous summons and complaint does not satisfy the requirement. Dawson 1. Troy, 49 Hun, 322, 2 N. Y. Supp. 137.
2 Hamilton r. City of Buffalo, 55 App. Div. 423, 66 N. Y. Supp. 990, rev'd on another point, 173 N. Y. 72.
3 Biggs v. City of Geneva, 100 App. Div. 25, 90 N. Y. Supp. 858, aff’d, 184 N. Y. 580 (under statute requiring filing within one month, it is too late to file the notice March 11th for an injury ocrurring February 10th). N. Y. Statutory Construction Law, § 26.
4 Walden t. Jamestown, 178 N. Y. 213; Green v. Port Jervis, 55 App. Div. 58, 66 N. Y. Supp. 1042; Gonyeau v. Milton, 48 Vt. 172. In Biggs i'. City of Geneva, 184. N. Y. 580, the court considered a limitation of one month was reasonable under the facts proved (plaintiff had a fractured wrist) ; but in Williams r. Port Chester, 72 App. Div. 505, 76 N. Y. Supp. 671 (again, 97 App. Div. 85, 89 N. Y. Supp. 671), a limitation of thirty days was held unreasonable and unconstitutional. Compare Forsyth t, City of Oswego, 107 App. Div. 187. 95 N. Y. Supp. 33, where the court held that plaintiff had failed to establish that he had been so incapacitated for over four months.
5 Norton 1. Mayor of New York, 16 Misc. 303, 38 N. Y. Supp. 90.
6 Adapted from Sheehy v. City of Neir York, 160 N. Y. 139.
The complaint must allege proper filing of notice, or is insufficient. Krall 0. City of New York, 44 App. Div. 259, 60 N. Y. Supp. 661. If an
inadvertent omission, plaintiff should be given opportunity to amend. Bedell v. New York, 19 App. Div. 128, 90 N. Y. Supp. 936.
7 Intention to sue need not be stated in terms, but if it may be