Foley v. Mayor of New York

The action was brought to recover damages for injuries which .plaintiff alleged she sustained by reason of the negligence of the defendants. The complaint did not allege that notice of intention to commence the action had been filed with the counsel to the corporation within six months after cause of action accrued, as required by chapter 572 of the Laws of 1886. Before any evidence was given, the court dismissed the complaint, on the defendants’ motion, it being conceded that no written notice had been filed, but that only oral notice had been given. An oral notice is not a compliance with the statute. When the law requires a notice to be filed, it implies that the notice shall be in writing. Pearson v. Lovejoy, 53 Barb. 407, and cases cited. A notice by word of mouth cannot be filed. The filing of the notice is a condition precedent to the existence of a cause of action. Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep. 482. The fact of the filing must be set up in the complaint, or a case of action is not alleged. Merz v. City of Brooklyn, 33 St. Rep. 577; affirmed, 123 N. Y. 617; 38 St. Rep. 1014.

*188There was no error at the circuit, and the motion for a new trial, must be denied, and judgment- for defendants ordered on the verdict., with costs of the application and of the court below.

All concur.