eBook details
- Title: Francis J. Deacon v. City Buffalo Et Al.
- Author : Supreme Court of New York
- Release Date : January 07, 1967
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
Judgment and order reversed on the law, the facts, and in the interests of justice, and new trial granted, without costs. Memorandum: Section 362 of the Buffalo City Charter prohibits the bringing of an action against the city for personal injuries sustained ""in consequence of the existence or accumulation of snow or ice upon any street"" unless prior written notice is given to the city of the alleged condition and there has been a failure or neglect within a reasonable time to correct the condition. The second cause of action in the complaint was based on the alleged negligence of the city ""by reason of an accumulation of ice, windblown snow, and impacted snow"" on a stated highway. The pleading further alleged compliance ""with all of the conditions precedent to the bringing of the action"" and compliance with all provisions of the City Charter. Upon the trial no proof was submitted of service of the notice required by section 362. The court, however, submitted this cause of action to the jury. Concededly, counsel for the city in moving to dismiss at the close of plaintiff's case and at the completion of the proof did not base his motions on the failure to comply with the statutory provision. The trial court, however, reserved decision on all motions. At the close of the charge counsel for the city ineptly requested a charge, which was granted upon the consent of plaintiff's counsel, that the pertinent section mandated service of the written notice of the alleged condition and that there had been no compliance therewith. It is obvious that this was not a factual issue for the jury. The trial court having been alerted to the defect in the proof should have (by proper additional instructions) withdrawn from the jury a consideration of the second cause of action. The verdict of the jury made it plain that all of this was no harmless error. As a supplement to its verdict of $80,000 for plaintiff it was reported that the city was 75% negligent and the individual operator of the city's vehicle was 25% negligent. This can only be construed as a finding that the nonmaintainable cause of action