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dum provided for by the new charter is dit-, be in odd-numbered years, and their terms of offerent in its object and effect. Under its pro-fice may properly be fixed at four years. visions the electors by their vote at the bal- Cent. Dig. SS 97, 98; Dec. Dig. ww 65;. Dis.

(Ed. Note.- For other cases, see Counties, lot bos directly exercise legislative power.trict and Prosecuting Attorneys, Cent. Þig. $8 Under this ordinance they give advice or 6, 7; Dec. Dig. Om2(5); Register of Deeds, indicate public sentiment.

Cent. Dig. 88 3-6; Dec. Dig. Om2; Sheriffs The city is authorized by the charter (sec. and Constables, Cent. Dig. 88 9–13; 'Dec. Dig.

m5.] tion 363) to “purchase, construct, maintain

Chase, J., dissenting. and regulate works to provide the city and its inhabitants with light." The question of Appeal from Supreme Court, Appellate Di. such municipal ownership and operation was a vision, First Department. proper one to submit. Question No. 3 is, how Mandamus, on the relation of James F. ever, argumentative in form. When it asks, O'Brien against Edward F. Boyle and others, "Shall the city of Buffalo own and operate an as Custodian of Primary Records and as electric plant * * in order to produce Commissioners of Election, constituting the revenue and thus lower the city taxes?” it as- Board of Elections in the City of New York, sumes that the city taxes would be lowered, the Republican and Democratic County Comand thus it begs the very question which it mittees of Brons County intervening. From purports to submit by assuming in the prem an order of the Appellate Division (100 N. Y. ises the conclusion which it is desired to Supp. 917), reversing (as matter of law) an prove. This was the fourth of Aristotle's order of the Special Term, which granted mo fallacies and a well-known lure in disputation for mandamus, requiring the board of tion. 21 Ency. Brit. (11th Ed.) 307. The elections to refrain from publishing notices question should be plainly stated without of election for certain oficials in Bronx counthis qualification.

ty, relator appeals. Reversed, and order of I therefore vote for affirmance.

Special Term affirmed.

Joseph M. Callahan, of New York City HISCOCK, COLLIN, CUDDEBACK, and (Edgar M. Cullen and James A. Foley, both HOGAN, JJ., concur with WILLARD BART- of New York City, of counsel), for appellant. LETT; C. J., and CARDOZO, J., concurs in Lamar Hardy, Corp. Counsel, of New York result. POUND, J., concurs in result, in City (Terence Farley, of New York City, of memorandum.

counsel), for respondents. Louis 0. Van

Doren, Julius D. Tobias, and John Boyle, Order affirmed.

Jr., all of New York City, for intervener Republican County Committee of Bronx County.

(219 N. Y. 195)

POUND, J. This is an appeal from an orO'BRIEN V. BOYLE et al. (REPUBLICAN der of the Appellate Division, First DepartCOUNTY COMMITTEE OF BRONX

ment, reversing an order of the Supreme COUNTY et al., Interveners),

Court, entered at Special Term (Bronx (Court of Appeals of New York. Oct. 20, 1916.) county), which granted a motion made by

the appellant for a writ of peremptory manCOUNTIES Cm 65-DISTRICT AND PROSECUTING damus against the respondents. ATTORNEYS 2(5) REGISTER OF DEEDS

2 SHERIFFS AND CONSTABLES 5 The appellant is the present sheriff of TERMS OF OFFICE CONSTITUTIONAL AND Bronx county. The respondents constitute STATUTORY PROVISIONS. Separation of local elections from state and

the board of elections of the city of New national elections, in large communities, being York. In their official capacity the respondthe purpose of the amendments, in 1894, by in- ents were proceeding to hold elections in sertion of the quoted words, of Const. art. 10, Bronx county for the offices of district at8.1, providing that sheriffs, clerks, of counties, district attorneys, and registers, shall be elect' torney, sheriff, county clerk, and register of ed every three years "except in the counties of deeds. The appellant thereupon petitioned New York and Kings, and in counties whose the court as sheriff and as an elector for a boundaries are the same as those of : city, writ of mandamus, directing the respondents where such officers shall be chosen, * once in every two or four years as the Legisla- to omit from the notices of election and the ture shall direct,", and of article 12, § 3, pro- ballots to be used on election day in 1916 viding that all elections of city officers, and any reference to the election of candidates of county officers in the counties of New York for the offices above enumerated. From the and Kings, and in all counties whose boundaries are the same as those of a city," shall be order granting said application an appeal in odd-numbered years, election of such coun was taken to the Appellate Division, which ty officers, except in odd-numbered years, and reversed the Special Term. for terms of two or four years, was intended to be prohibited within the then territorial

The question involved in this appeal is limit of New York county, and not merely in whether the official terms of the sheriff, disNew York county, without regard to any sub-trict attorney, county clerk, and register of sequent reduction in its limits, so that on the creation, from part of the territory of New York, deeds of Bronx county may constitutionally of Bronx county, with a population of over hall be fixed by the Legislature at four years or a million, election of such officers therein must whether they are limited by the Constitution

to three years. If such terms are fixed by, vention said at page 1251 of the record (volthe Constitution at three years, successors ume IV): to the present incumbents of said offices are "We seek to separate in the larger cities, muproperly to be elected in the general election nicipal elections from state and national electo be held in November, 1916; if their terms our great municipal corporations may be man

tions, to the end that the business affairs of are four years, the election of their succes- aged upon their own merits, uncontrolled by pasors in office should not be held until 1917. tional and state politics, and to the end, also,

The county of Bronx was erected out of that the great issues of national and state polNew York county by Laws 1912, c. 548. The from the disturbing and often demoralizivs ef

itics may be determined upon their merits, free Brons County Act provides that:

fect of local contests. For this purpose it has "Section 3. * There shall be elected

been necessary by a series of amendments to rein the said county of Bronx at the general elec- arrange the terms of office and times of election of 1913 a county judge, a surrogate, a dis- tions

of the Governor, state officers, Senators, trict attorney, a sheriff, a county clerk,' and a and municipal officers, so that the elections for register of deeds. The official terms of said state officers will occur in the even-numbered officers shall be as follows: . The dis- years and the elections for municipal officers in trict attorney, four years ; the sheriff, four the odd-numbered years.” years; the county clerk, four years; the regis

In the execution of this purpose it is pro ter of deeds, four years."

vided (except as to cities of the third class) The state Constitution contains a provi- that all city officers shall be elected in oddsion, article 10, section 1, as follows:

numbered years. As to county officers the "Sheriffs, clerks of counties, district attorneys, convention did not extend the full benefits and registers in counties having registers, shall of the reform to the rural counties, but conbe chosen by the electors of the respective coun- tinued the ancient and accustomed tenure of ties, once in every three years and as often as office. In the densely inhabited counties of vacancies shall happen, except in the counties of New York and Kings, and in counties whose New York and Kings, however, where the boundaries are the same as those of a city, evils of combining national, state, and local where such officers shall be chosen by the elece elections were presumably greater, the septors once in every two or four years as the Leg- aration was made. Bronx county contains islature shall direct."

618,000 inhabitants. No city in the state, Article 12, § 3, provides :

except the city of New York, of which it is “All elections of city officers, including super- a part, has so large a population. It is exvisors and judicial officers of inferior local ceeded by but few cities in the United courts, elected in any city, or part of a city, and of county officers elected in the counties of New

States. Every reason that existed for sepYork and Kings, and in all counties whose arating local elections from state and naboundaries are the same as those of a city, ex- tional elections in New York county as it cept to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November

was in 1894 exists for separating them now in an odd-numbered year, and the term of every in Bronx county. We are construing a Consuch officer shall expire at the end of an odd-stitution, and we must be guided by the numbered year.”

spirit as well as the letter of the fundaThe words in italics were inserted by the mental law. We seek the reason of the rule, constitutional convention of 1894.

and we find that the reason still exists. The Did the framers of the Constitution of division of New York county into two great 1894 intend to prohibit the election of coun- counties is no slight change of boundaries, ty officers within the then existing terri- and it should not take from the people of torial limits of New York county except in either division the constitutional right to the odd-numbered years and for terms of elect their local officers in odd-numbered two or four years, or did they intend to years apart from the excitement and irreleplace such limitation only upon the political vant discussion of state and national camorganization known as New York county, paigns. without regard to its boundaries as they I think, therefore, that the order appealed were defined in 1894?

from should be reversed, and the order of The purpose of the amendment incorpo Special Term afirmed. rated into the Constitution in 1894 is stated with clearness in the debates in the consti- COCK, COLLIN, CUDDEBACK, and CAR

WILLARD BARTLETT, C. J., and HIStutional convention to be the separation of DOZO, JJ., concur; CHASE, J., dissents on local elections from state and national elec- opinion of Dowling, J., in the Appellate tions in the interest of independence in niu. Division. nicipal affairs and better municipal govern. ment. In the Address to the People the con Ordered accordingly.

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(219 N. Y. 178)

cededly the statute explicitly and perempWEISMAN V. CITY OF NEW YORK. torily required that as a condition precedent (Court of Appeals of New York. Oct. 10, 1916.) to the commencement of her action to re

cover such judgment she should serve1. MUNICIPAL CORPORATIONS Om812(7) — IN “notice of the intention to commence such acJURIES TO PERSONS ON STREETS-NOTICE. Under Laws 1886, c. 572, requiring, as a juries were received,” by filing the same "with

tion and of the time and place at which the incondition precedent to suit, notice of intention the counsel to the corporation or other proper to sue a city for personal injuries and of the law officer "time and place at which the injuries were re- such cause of action

within six months after

accrued." ceived" to be filed within six months after the accident, notice of injuries from defective side She attempted to comply with this rewalk, stating the time of the accident as August quirement by filing a notice wherein she 20th, it in fact having occurred August 28th, stated that the time of the accident was was insufficient.

[Ed. Note.-For other cases, see Municipal August 20, 1912. On the trial, notwithstandCorporations, Cent. Dig. $ 1702; Dec. Dig. Om ing the due and timely objections and mo81217).]

tion of the defendant, she was allowed to re2. MUNICIPAL CORPORATIONS Om812(5)—INJU- cover under such notice on evidence which RIES—NOTICE-HARMLESS ERROR-ERROR IN showed that the accident happened August DATE OF NOTICE.

Where the notice of personal injuries from 28, 1912. Intermediate the service of the defective sidewalk addressed to a city stated the notice and the trial she had been examined time of the accident as August 20th, it having by the corporation counsel, and had stated occurred August 28th, its insufficiency could not that the accident occurred August 28th, but be disregarded as not prejudicial to the city be cause plaintiff

, on examination by the corpora- subsequent to such examination she had tion's counsel before the trial, stated the accident served her complaint, in which she had aloccurred August 28th, where she subsequently leged that the accident occurred on the date served her complaint, alleging the original in- mentioned in her notice, to wit, August 20, correct date of August 20th, since by her last and controlling words she authorized defendant

1912. The trial judge submitted it to the city to believe that after all the correct date was jury to determine as a question of fact August 20th, and that that would be the one it whether her notice with its erroneous statewould be compelled to meet on the trial.

ment of the time of the accident was a sub(Ed. Note. For other cases, see Municipal stantial compliance with the statute, and Corporations, Cent. Dig. $ 1700; Dec. Dig. Omo this was duly excepted to by the defendant's 812(5).] 3. MUNICIPAL CORPORATIONS Om812(5) IN

counsel, who insisted that this was not a JURIES-NOTICE-WAIVER.

question of fact, but that it should be held The insufficiency of a notice to a city of in- as a matter of law that substantial compli. jury from defective sidewalk, because of errone ance with the statute had not been effected. ous statement of date of accident, was not waiy

[1] Various theories are advanced for the ed by the injured person's being examined before trial by the corporation's counsel, at which hear- purpose of relieving plaintiff from the bluning she stated the correct date.

der affecting her notice. It is argued that [Ed. Note.-For other cases, see Municipal the notice described the place of the acciCorporations, Cent. Dig. & 1700; Dec. Dig.

dent, and specified a time when the accident 812(5).]

was alleged to have occurred, and that there Appeal from Supreme Court, Appellate was therefore no defect in the form of the Division, First Department.

notice, and some distinction seems to be atAction by Ida Weisman against the City tempted between a notice which is "insufof New York. From an unanimous order officient in form" and one which is sufficient the Appellate Division (169 App. Div. 558, in form, but contains an "error in fact," in 155 N. Y. Supp. 418), reversing a judgment that it inaccurately states the alleged date of the Trial Term, entered on order setting of the accident. I am not able to adopt any aside a verdict and dismissing plaintiff's such theory as this. The statute by its complaint and directing that judgment be terms makes the statement of the time of entered on the verdict in favor of plaintiff, the accident just as important as the state and from the judgment entered thereon, de- ment of the place of the accident, and the fendant appeals. Judgment and order re results of the failure to comply with this versed.

requirement because of an erroneous state

ment of the date of the accident cannot be Lamar Hardy, Corp. Counsel, of New avoided by saying that the notice is correct York City (D. Crosby Kindleberger, of New in form although erroneous in fact. All the York City, of counsel), for appellant. cases on the subject fully recognize, either George F. Hickey and Breitbart & Breitbart, directly or by implication, the necessity, not all of New York City, for respondent.

only of a statement of the date of the acci

dent but also of a substantially correct HISCOCK, J. This action was brought statement of that date. Foster v. City of by plaintiff to recover damages for personal New York, 168 App. Div. 924, 152 N. Y. injuries claimed to have been sustained by Supp. 1111; Cotriss v. Village of Medina, reason of a defective sidewalk, and a judg- 139 App. Div. 872, 874, 875, 124 N. Y. Supp. ment has been rendered in her favor. Con- 507, affirmed Id., 206 N. Y. 713, 99 N. E.


1103; Purdy v. City of New York, 193 N. Y., of his duty by the corporation counsel, and 521, 523, 524, 86 N. E. 560; Carson v. Vil. that "with a pleading neither alleging comlage of Dresden, 202 N. Y. 414, 417, 95 N. E. pliance, substantial, or otherwise, with the 803; City of Ft. Wayne v. Bender, 57 Ind. requirement of the statute, nor alleging a App. 689, 105 N. E. 949; Ouimette v. City of waiver, or any facts excusing the plaintiff Chicago, 242 Ill. 501, 507, 90 N. E. 300; from performance, the defendant's demurrer" Casey y. City of New York, 217 N. Y. 192, to the complaint, on the face of which ap111 N. E. 764; Carter v. City of St. Joseph, peared plaintiff's failure should have been 152 Mo. App. 503, 133 S. W. 851; Barron v. sustained. White, 29 R. I. 482, 72 Atl. 644; Gardner v. In Forsyth v. City of Oswego, 191 N. Y. City of New London, 63 Conn. 267, 28 Atl. 42; | 441, 445, 84 N. E. 392, 393 (123 Am. St. Rep. White v. Stowe, 54 Vt. 510.

605), the plaintiff failed to serve the requisite [2] In the next place the argument is ad- notice of the time and place of his alleged inFanced that although the date of the acci- juries by reason of a defect in the highway. dent was incorrectly stated, the defendant Subsequently he was interrogated as to the suffered no harm therefrom, and therefore circumstances of his alleged accident at a that the error may be disregarded. It is ar- hearing before a committee of the board of gued on this point:

aldermen to which his claim had been refer“If

the inaccuracy did not mislead red, and it was asserted that such facts conthe defendant or result in any respect to its stituted a waiver of a defense on the part of prejudice, it should not be regarded as insuffi- the municipality arising from failure to serve cient."

his notice. It was held, however, that these [3] Again, I think that this statement is not facts did not constitute such a waiver, the in accordance with the decisions of this court, court saying: but directly opposed thereto; that the effects "Neither is the fact that the plaintiff was givof a failure to comply with the statute re en a hearing before that committee evidence of quiring service of this notice were neither the defendant's intention to waive anything. tested nor avoided by the fact that the city circumstances under which the claim arose be

The defendant had the right to investigate the has not suffered in consequence of such fore deciding what action it would take. Mu

And first in this connection, there nicipal corporations, acting through their offiought to be corrected the impression that cers and agents, have the right to conduct such plaintiff fully advised defendant by her ex- ing whether they are liable or not.'

investigations for the very purpose of ascertainamination under the statute that the date finally given on the trial was the correct In Purdy v. City of New York, 193 N. Y. time of her accident. As has been stated, 521, 523, 86 N. E. 560, 561, a notice was servsubsequent to the time when she was thus ed which did not sufficiently designate the examined and gave a date corresponding place of the alleged accident to plaintiff, and with that given on the trial, she served her it was claimed that the retention of this nocomplaint, in which she reverted to and al- tice by the defendant operated as a waiver leged the original incorrect date of August of the requirement of the statute. The court, 20th. Therefore, by her last and controlling speaking through Judge Werner on this subword on this subject, the defendant was au- ject, said: thorized to believe that after all the correct “The statute before us, reasonably construed, date was August 20th, and that that would does not require those things to be stated with be the one which it was compelled to meet on such a statement as will enable the municipal

literal nicety or exactness, but it does require the trial. Under all of these circumstances authorities to locate the place and fix the time the law is perfectly clear that a claimant is of an accident. When a notice contains the not relieved from failure to comply with the information necessary for that purpose, it is statute because he has been examined as to when it falls short of that test it is insufficient.”

a substantial compliance with the statute, but the details of his claim, or because it might be supposed that the defendant has not suf

In Cotriss v. Village of Medina, supra, the fered from a mistake in the notice.

plaintiff failed to comply with the requireIn Winter v. City of Niagara Falls, 190 n. ment of a statute that verified claims for Y. 198, 205, 82 N. E. 1101, 1103 (123 Am. St. damages for personal injuries resulting from Rep. 540, 13 Ann. Cas. 486), it appeared that defective streets should be served.

It was the plaintiff had failed to present a claim for claimed that plaintiff's failure to verify her damages resulting from his alleged injuries notice did not result in any injury to the dewithin the time specified by the statute, but fendant, and therefore should be overlooked, the Appellate Division were of the opinion but it was said in respect of this claim: that the defendant had waived compliance "It may be that the omission to present the with the provisions of its charter which proper writing or statement to the board did not would have barred the action. It was claim- result in any damage to the defendant. That is

not the test. The requirement is absolute, and ed that this waiver had been accomplished the question of whether injury resulted from the by subpænaing the plaintiff to appear and failure to comply with the explicit mandate of submit to an examination which was con- the statute is not open to proof or inquiry. If ducted by the city attorney. It was held by so, these and similar provisions intended to safe

guard municipalities against the imposition of this court that such examination did not unjust claims would be nullified.” 139 App. amount to a waiver, but simply to a discharge Div. 872, 875, 124 N. Y. Supp. 507, 509.

In Casey v. City of New York, 217 N. Y., served within 72 hours after the accident 192, 195, 111 N. E. 764, 765, the notice served happened. in behalf of plaintiff was held to be insufi So, as it seems to me, we come to the only cient in respect of the statement of the place possible theory on which plaintiff can ask to of the accident. It was claimed, however, be relieved of her error in the statement of that this defect should be disregarded be the time of the accident, and this is the one cause the city had no difficulty in finding the that her notice was a substantial comph. place where the accident happened, and had ance with the statute. I think it was error suffered no harm as the result of the defect. for the court to submit this question as one But it was said by this court through Judge of fact to the jury. City of Ft. Wayne v. Pound:

Bender, 57 Ind. App. 689, 105 N. E. 949, 950. "No one could from the notice locate the place But if the court would have been justified with accuracy, and plaintiff is wholly without in holding as a matter of law that a notice excuse for this defect. * The city had no failing by 8 days to state the correct time difficulty in finding the spot where plaintiff fell of an accident was nevertheless a substantial and making its measurements soon after the accident, and as the first purpose of the statute compliance with the statute, this error can is to enable the city to conduct its investiga- be disregarded and the judgment upheld. No tions intelligently, it is urged that the notice, case can be found, in this state or elsewhere, vague as it is, is definite enough to serve that which holds any such doctrine as that. Only purpose in this case.

* The city, is entitled to know, not alone where the accident in two cases decided in this state have been citfact happened, but also where the injured per- ed passing directly on this general question. son claims that it happened. The two points These are the ones of Sullivan v. City of are not necessarily and invariably identical, and the rule requiring a particular location to be Syracuse, 77 Hun, 440, 29 N. Y. Supp. 105, stated in the notice should not be greatly re- and Kleyle v. City of Oswego, 109 App. Div. laxed merely because the conjectures of the city 330, 95 N. Y. Supp. 879, where it was held officials as to its meaning prove accurate.

only after considerable discussion and careful See, also, Rauber v. Village of Wellsville, consideration that a notice stating within 1 83 App. Div. 581, 82 N. Y. Supp. 9; Ouimette day the correct time of an accident might be v. City of Chicago, supra; Sowle v. Tomah, regarded as a substantial compliance with 81 Wis. 349, 51 N. W. 571; Shea v. Lowell, the statute, although in the latter case a 132 Mass. 187; Dalton v. Salem, 139 Mass. judgment in favor of the plaintiff was revers91, 28 N. E. 576.

ed, and what was said on this point was more As I have stated, I know of no difference in or less dictum. binding effect between the requirements for

It is also true that it has been held in vari. the statement in such a notice of the time ous cases that a notice stating that the acciand of the place, and it seems to me that un

dent occurred "on or about" a certain date der the cases which have been cited the plain would be regarded as a sufficient compliance tiff is not excused, either on the ground that with the statute when the date stated was there had been a waiver of a requirement of the one on which the accident actually occur

red. Murphy v. Village of Seneca Falls, 57 the statute, or that the defendant had not

App. Div. 438, 440, 67 N. Y. Supp. 1013; Brensuffered as the result of her mistake. The cases of Sheehy v. City of New York, This doctrine, however, has been denied in

ner v. City of Chicago, 182 Ill. App. 318. 160 N. Y. 139, 54 N. E. 749, and Walden v. this state. Lee v. Village of Greenwich, 48 City of Jamestown, 178 N. Y. 213, 70 N. E. App. Div. 391, 394, 63 N. Y. Supp. 160. 466, do not sustain any such proposition as is

When, however, we pass these cases and urged in behalf of the plaintiff.

come to those dealing with a clear misstateIn the Sheehy Case the only claim was ment of the date of the accident, we find that that the notice was deficient in failing to an error of 10 days or less in the notice of state in explicit terms an intention to com

an accide

has been held fatal, and not to mence an action, and it was held that it ful- be excused upon the theory of a substantial filled the purpose of the statute by informing compliance. the corporation counsel of the nature of the

In the Quimette Case, already cited, there claim, the place where and the circumstances was an error in the statement of the date of under which it arose and of a purpose to a month, and, of course, that was so much enforce it-a very different case, as it seems more serious than the one now before us that to me, than one where the plaintiff has fail- the case is not a controlling authority. Neved to make a correct statement of the time ertheless, there will be found in the opinion a or place of an accident.

discussion which impliedly upholds the prop- : In the Walden Case it was simply held that osition now being advanced that the error in plaintiff should not be deprived of his right tbis case is too serious to be overlooked. to bring an action because of his failure In Gardner v. City of New London, 63 within 48 hours to serve notice, stating the Conn. 267, 28 Atl. 42, it was held that a misplace where the accident occurred, when it take of 3 days was fatal. appeared that literal compliance with the In Barron v. White, 29 R. I. 482, 72 Atl. statute was impossible because of plaintiff's 614, a mistake of only 1 day was held to be

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