and 138 New York State Reporter

cities of more than 50,000 inhabitants, and there is no evidence of any "legislative intent to deprive an injured infant in such cases of the benefit of the general exception in section 396." I have referred to these cases for the purpose of showing that they were directed solely to the period of limitation upon the commencement of actions in negligence cases.

The requirement that the person injured who seeks to hold the city liable for his injuries must, within 30 days "after the happening of the accident," present a claim showing the time and place of the accident, does not relate to the commencement of the action. The object of the requirement is to enable the municipal officers to investigate the genuineness of the claim while the facts are fresh and the evidence may more readily be obtainable justifying either the payment or the rejection of the claim. Sheehy v. City of New York, 160 N. Y. 139– 143, 54 N. E. 721. Legislation of this kind has been a necessity, in view of the multitude of claims presented for personal injuries founded upon the alleged carelessness of the municipalities, and some of which claims have apparently been without merit. A reasonable construction should be given statutes of this kind; on the one hand, to render more difficult any attempt to mulct the cities by unfounded claims, and, on the other hand, not to interpose unreasonable technical barriers to the enforcement of those which are meritorious. No rigid rule can be established. If an infant of 10 years is injured, with no one capable of presenting a claim to the common council, the strict limitation of the statute should not be raised against him. If 20 years of age and mature, and not disabled unduly by his injuries, then the statutory requirements should be applicable. "Each case must be a law unto itself," within reasonable limits. In many of the cities there is a charter requirement that, where a plaintiff has been injured by reason of a defective street, his claim must be served upon a designated official of the city within 48 hours after the accident. The courts in construing this provision have held that, if the plaintiff was prevented by disability from serving the notice within the time of the charter requirement, a service shortly after the removal of the disability was a substantial compliance with the statute. Walden v. City of Jamestown, 178 N. Y. 213, 70 N. E. 466, affirming 79 App. Div. 433, 80 N. Y. Supp. 65.

In this case the plaintiff was 18 years of age, and we cannot determine on the complaint itself, without any proof, that he lacked the ability and intelligence common to young men of that age. He may have been able to serve the required notice within the 30 days, and yet not be capable of commencing the action within one year. The notice of his claim would not necessarily bar him from asserting his infancy as the reason for not commencing the action within a year. There are two independent requirements: One, to enable the city to investigate the character of the claim before it becomes stale and the evidence pertaining to it disappears; the other is purely a limitation upon the period for commencing the action, and disconnected with the preliminary examination of the demand. In the McKnight Case, the notice of intention to commence the action and "of the time and place at which the injuries were received" was filed on time. If that

had not been done, a different decision might have been rendered. The sole question in the case was as to the limitation upon the action, and no allusion is made to the filing of the notice of intention. A notice served by an infant is valid. Donovan v. City of Oswego, 42 App. Div. 539-542, 59 N. Y. Supp. 759. It does not follow, because he serves it, however, that he must commence the action within a year, if he does not reach his majority within that time. The service of the notice of claim is a condition precedent to the maintenance of the action. McMullin v. City of Middletown, 187 N. Y. 37, 79 N. E. 863; Curry v. City of Buffalo, 135 N. Y. 366-370, 32 N. E. 80. The reason for adhering somewhat strictly to this requirement is because of its importance to the city to enable it to make the investigation. It is not of so much interest to the municipality when the action may be commenced, but it should have an early opportunity to investigate the nature of the claim against it.

The Legislature which created the cause of action imposed the requirement, and a substantial compliance with it is a requisite to the right to recover, unless it has been waived. Passing this question, however, we are of the opinion that the necessity of presenting the notice of claim within 30 days has been waived by the defendant. Section 489 of the defendant's charter (chapter 300, p. 792, Laws 1904) makes it "the duty of the corporation counsel to cause all claims for personal injuries or damages to property to be thoroughly investigated." The city judge is authorized to compel the attendance of witnesses by subpoena to "testify in respect to such claim pending before the common council or referred to the committee," and he possesses authority to punish for contempt any one disobeying the subpœna or refusing to testify. Section 489.

The complaint alleges:

"That 40 days and more have expired since the filing of said petition; that, after this plaintiff had caused his verified claim to be served upon the common council of the city of Niagara Falls, he was subpoenaed by a member of the defendant's police force to appear before certain officers of said city, and in compliance with said subpoena did so appear and was then examined as to the cause of action and the injuries herein alleged, said examination being conducted by the city attorney, and each question and answer recorded."

In pursuance of this authority, according to the allegations of the complaint, an investigation was instituted. The plaintiff himself was subpoenaed and examined as to the cause of the accident and the extent of his injuries. If the notice was invalid, the defendant knew it at the time the plaintiff was subpoenaed. It could not trifle with the plaintiff by acting on the assumption that the claim possessed sufficient vitality to require his attendance before the city judge and be subjected to a cross-examination as to the substantive part of his claim, and when the action was commenced repudiate the demand because, forsooth, the notice was not served in time. This affirmative act on behalf of the defendant is incompatible with the position that the notice was void because not served within the time prescribed by the charter. The course of conduct adopted signified the purpose of the defendant to abandon its right to insist that the notice was served too late. When put to the trouble and expense of the examination on

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the merits of his claim, the plaintiff was justified in believing that the defendant did not intend to ignore the notice altogether. The city could not follow a line of conduct in recognition of the proper service of the notice, and then later on disclaim the service. It elected its mode of procedure, and is bound by it.

In Forsyth v. City of Oswego, 114 App. Div. 616, 99 N. Y. Supp. 1022, the plaintiff failed to file the notice of claim within three months, which was the time specified in the city charter for the service of the notice. After the service of the notice, the plaintiff, at the instance of the municipal authorities, was examined as to the merits of the claim. This court held the investigation of the claim and the examination of the plaintiff was a waiver of the tardy service of the notice, saying, at page 618 of 114 App. Div., at page 1023 of 99 N. Y. Supp.: "We think such action on the part of the defendant was a waiver by it of a notice in compliance with the statute, and that the defendant was estopped, after requiring the plaintiff to be examined as to the time and circumstances of the accident, from asserting that by his failure to serve a notice as required by the statute he could not maintain an action to recover damages for the injury sustained by him through the defendant's negligence."

To the same effect are Hamilton v. City of Buffalo, 55 App. Div. 423, 66 N. Y. Supp. 990, and Grothier v. N. Y. Brooklyn Bridge Co., 19 App. Div. 586, 46 N. Y. Supp. 621. The notice pertains to the remedy, instead of to the substantive cause of action (Sheehy v. City of N. Y., 160 N. Y. 143, 54 N. E. 749), and the defendant may waive defects in the manner of service. The notice of claim was in the form of a verified petition. Whether it was sufficient to meet the requirements of the charter as a notice we are unable to state. We will assume on this appeal it was adequate, as is alleged in the complaint.

The interlocutory judgment should be reversed, and the demurrer overruled.

Interlocutory judgment reversed, with costs and disbursements of this appeal; and demurrer overruled, with costs, with leave to the defendant to plead over on payment of such costs and disbursements.

WILLIAMS and ROBSON, JJ., concur. MCLENNAN, P. J., concurs on ground that statute did not commence to run until after plaintiff became 21.

KRUSE, J. (dissenting). I agree with Mr. Justice SPRING that the provisions of the defendant's charter, requiring a claim against the defendant city, such as is set forth in the complaint, to be presented to the common council within 30 days after the occurrence causing the damages or the happening of the accident, or the injury out of which the claim arose, is not merely a statute limiting the time for the commencement of the action, but a condition precedent to the maintenance of the action at all. I do not, however, concur in the view that the complaint shows that the provisions of the statute have been waived. by the plaintiff. The fact that the plaintiff was subpoenaed by a member of the defendant's police force to appear before certain officers of the city not named, and attend, and that the plaintiff did appear,

and the examination was conducted by the city attorney, does not necessarily show a waiver. There is no allegation in the complaint that the provisions of the charter referred to were waived by the defendant, and these facts do not even come within the provisions of the charter, which provides for the examination of a claim. Counsel for the plaintiff calls our attention to section 489 of the defendant's charter, which permits the defendant to issue a subpoena to compel the attendance of persons to appear and testify before the corporation counsel, in respect to claims for personal injuries; but there is no allegation in the complaint that the subpoena was issued by the defendant, or that the plaintiff testified before the corporation counsel. Nor does it appear what the testimony of the plaintiff was, or the nature thereof, beyond the general statement that he was examined as to the cause of action and the injuries alleged in the complaint. Just what the precise nature of the proceeding was in which the plaintiff was examined by the corporation counsel does not appear. I think the allegation falls far short of a plea of waiver. Beyond that I am not impressed with the claim that the mere fact that the corporation counsel, in performing a duty which the charter imposed upon him (if such was the nature of this proceeding) was a waiver upon the part of the defendant of noncompliance by the plaintiff with this provision. I think the complaint showed neither a substantial compliance nor a waiver of the provisions of the defendant's charter respecting the presentation of claims of this character.

I vote for affirmance.

MCCARTNEY et al. v. TITSWORTH et al.

(Supreme Court, Appellate Division, Fourth Department. May 1, 1907.) 1. LIFE ESTATES-ACTS CONSTITUTING WASTE TREES AND TIMBER.

Where defendant, having a life estate in land, removed the wood and timber therefrom, his act constituted waste under Code Civ. Proc. § 1655, relating to actions for waste against the tenant of a particular estate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Life Estates, § 42.]

2. SAME-FORFEITURES.

In an action against a life tenant for waste by the person next entitled to the reversion, under Code Civ. Proc. § 1655, relating to actions for waste against the tenant of a particular estate, where it was shown that the damages exceeded the value of the life estate, the court correctly declared the interest of the life tenant terminated.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Life Estates, § 9.]

3. WASTE-DAMAGES.

Under Code Civ. Proc. § 1655, relating to judgment in actions for waste against the tenant of a particular estate, where the action was brought by the person next entitled to the reversion against the life tenant and plaintiff recovered, the court properly awarded him treble damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waste, § 49.]

4. SAME.

In an action for waste, the correct measure of damages was the difference in the value of the farm before and after the waste was committed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waste, § 44]

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5. APPEAL-REVIEW-HARMLESS ERROR.

In an action for waste committed by permitting the removal of the timber from land, it was not reversible error to admit evidence of the sale of the timber and of its amount and value.

6. WASTE-ACTIONS-EVIDENCE-SUFFICIENCY.

In an action against the husband for waste committed on real estate devised to him for life by his deceased wife, evidence examined, and held insufficient to authorize any finding of part performance of an oral agreement by the wife to convey the land to him, or of fraud on her part so as to confer upon him the equitable title to the land or the right to specific performance of the parol contract to redeed the same to him.

McLennan, P. J., and Kruse, J., dissenting.

Appeal from Trial Term, Allegany County.

Action by Sheldon McCartney and others against Josiah E. Titsworth and another. From a judgment for plaintiffs, defendant Titsworth appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Charles D. Newton, for appellant.

Milton E. Gibbs and A. J. Hibbard, for respondent.

WILLIAMS, J. The judgment and order should be affirmed with

costs.

The action was brought to recover damages against the defendant Titsworth for waste, and to declare his life estate forfeited by reason of such waste, under section 1655, Code of Civil Procedure. The wife of the defendant Titsworth acquired title to the property in question by deed March 20, 1863, and held such title until her death, August 3, 1901. She left at her death seven grandchildren, six named Gilman and one McCartney. She made a will, executed April 1, 1889, giving and devising to her husband all her real and personal estate, to be held and enjoyed during the term of his natural life, and after his death the remainder to her said grandchildren, and appointing her husband executor. During the lifetime and at the time of the death of the wife, her husband was living upon the farm with her, and has remained in occupation thereof ever since. When she died, 225 of the 360 acres of the farm were wood and timber land. In December, 1902, and December, 1904, the husband, the defendant Titsworth, sold and caused to be taken from the farm all the valuable timber thereon. In May, 1905, this action was brought by the grandchildren. The trial was had in June, 1906, and resulted in a verdict for damages $3,000, and fixing the value of defendant's life estate at $700. The damages were trebled under the statute, and judgment entered for $9,000 and costs; and, the value of the life estate being less than the damages, the interest of the defendant as life tenant was forfeited and terminated by the judgment. Under the will the husband, defendant, took only a life estate in the property, and the removal of the wood and timber constituted waste. The correct rule as to the measure of damages was stated by the court to the jury to be the difference in value of the farm before and after the waste was committed. It was not reversible error to permit the contracts for the sale of the timber to be in evidence and proof to be given of the amount and real value