dum provided for by the new charter is different in its object and effect. Under its provisions the electors by their vote at the ballot box directly exercise legislative power. Under this ordinance they give advice or Indicate public sentiment.

be in odd-numbered years, and their terms of of-
fice may properly be fixed at four years.
Cent. Dig. 88 97, 98; Dec. Dig. 65; Dis-
[Ed. Note. For other cases, see Counties,
trict and Prosecuting Attorneys, Cent. Dig. $8
6, 7; Dec Dig. 2(5); Register of Deeds,
Cent. Dig. §§ 3-6; Dec. Dig. 2; Sheriff's
and Constables, Cent. Dig. 88 9-13; 'Dec. Dig.

5.]

Chase, J., dissenting.

Appeal from Supreme Court, Appellate Di vision, First Department.

The city is authorized by the charter (section 363) to "purchase, construct, maintain and regulate works to provide the city and its inhabitants with light." The question of such municipal ownership and operation was a 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 Bronx County intervening. From purports to submit by assuming in the prem- an order of the Appellate Division (160 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 mofallacies and a well-known lure in disputa- tion 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 officials in Bronx counthis qualification. ty, relator appeals. Reversed, and order of Special Term affirmed.

I therefore vote for affirmance.

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 result. POUND, J., concurs in result, in memorandum.

Order affirmed.

(219 N. Y. 195)

O'BRIEN V. BOYLE et al. (REPUBLICAN
COUNTY COMMITTEE OF BRONX
COUNTY et al., Interveners).

(Court of Appeals of New York. Oct. 20, 1916.)

Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondents. Louis O. Van Doren, Julius D. Tobias, and John Boyle, Jr., all of New York City, for intervener Republican County Committee of Bronx County.

POUND, J. This is an appeal from an order of the Appellate Division, First Department, reversing an order of the Supreme Court, entered at Special Term (Bronx county), which granted a motion made by the appellant for a writ of peremptory mandamus against the respondents.

COUNTIES 65-DISTRICT AND PROSECUTING ATTORNEYS 2(5) — REGISTER OF DEEDS ⭑m2 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 a city, where such officers shall be chosen, * once in every two or four years as the Legislature shall direct," and of article 12, § 3, pro viding that all elections of city officers, and of county officers "in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city," shall be in odd-numbered years, election of such county officers, except in odd-numbered years, and 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

writ of mandamus, directing the respondents to omit from the notices of election and the ballots to be used on election day in 1916 any reference to the election of candidates for the offices above enumerated. From the order granting said application an appeal was taken to the Appellate Division, which reversed the Special Term.

creation, from part of the territory of New York, deeds of Bronx county may constitutionally of Bronx county, with a population of over half 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 properly to be elected in the general election to be held in November, 1916; if their terms are four years, the election of their successors in office should not be held until 1917.

(219 N. Y. 178)

WEISMAN v. CITY OF NEW YORK.

cededly the statute explicitly and peremp torily required that as a condition precedent

cover such judgment she should serve

juries were received," by filing the same "with tion and of the time and place at which the inthe counsel to the corporation or other proper law officer * * 串 within six months after such cause of action *

(Court of Appeals of New York. Oct. 10, 1916.) to the commencement of her action to re1. MUNICIPAL CORPORATIONS 812(7)-IN-"notice of the intention to commence such acJURIES TO PERSONS ON STREETS-NOTICE. Under Laws 1886, c. 572, requiring, as a condition precedent to suit, notice of intention to sue a city for personal injuries and of the "time and place at which the injuries were received" to be filed within six months after the accident, notice of injuries from defective sidewalk, stating the time of the accident as August 20th, it in fact having occurred August 28th, was insufficient.

[Ed. Note.-For other cases, Corporations, Cent. Dig. § 1702; 812(7).]

accrued."

She attempted to comply with this requirement by filing a notice wherein she

stated that the time of the accident was see Municipal August 20, 1912. On the trial, notwithstandDec. Dig.ing the due and timely objections and motion of the defendant, she was allowed to re

28, 1912.

2. MUNICIPAL Corporations ✨~~812(5)—InJU- cover under such notice on evidence which RIES-NOTICE HARMLESS ERROR-ERROR IN showed that the accident happened August DATE OF NOTICE. Intermediate the service of the Where the notice of personal injuries from 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 because 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 1912. The trial judge submitted it to the and controlling words she authorized defendant 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. this was duly excepted to by the defendant's 812(5).] counsel, who insisted that this was not a question of fact, but that it should be held as a matter of law that substantial compliance with the statute had not been effected.

3. MUNICIPAL CORPORATIONS

JURIES-NOTICE-WAIVER.

812(5)

IN

The insufficiency of a notice to a city of injury from defective sidewalk, because of erroneous statement of date of accident, was not waiyed by the injured person's being examined before trial by the corporation's counsel, at which hearing she stated the correct date.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1700; Dec. Dig. 812(5).]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ida Weisman against the City of New York. From an unanimous order of the Appellate Division (169 App. Div. 558, 155 N. Y. Supp. 418), reversing a judgment of the Trial Term, entered on order setting aside a verdict and dismissing plaintiff's complaint and directing that judgment be entered on the verdict in favor of plaintiff, and from the judgment entered thereon, defendant appeals. Judgment and order re

versed.

Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant. George F. Hickey and Breitbart & Breitbart, all of New York City, for respondent.

[1] Various theories are advanced for the purpose of relieving plaintiff from the blunder affecting her notice. It is argued that the notice described the place of the accident, and specified a time when the accident was alleged to have occurred, and that there was therefore no defect in the form of the notice, and some distinction seems to be attempted between a notice which is "insufficient in form" and one which is sufficient in form, but contains an "error in fact," in that it inaccurately states the alleged date of the accident. I am not able to adopt any such theory as this. The statute by its terms makes the statement of the time of the accident just as important as the statement of the place of the accident, and the results of the failure to comply with this requirement because of an erroneous statement of the date of the accident cannot be

avoided by saying that the notice is correct in form although erroneous in fact. All the cases on the subject fully recognize, either directly or by implication, the necessity, not only of a statement of the date of the accident 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.

that "with a pleading neither alleging compliance, substantial, or otherwise, with the requirement of the statute, nor alleging a waiver, or any facts excusing the plaintiff from performance, the defendant's demurrer" to the complaint, on the face of which appeared plaintiff's failure should have been sustained.

1105; 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. Village of Dresden, 202 N. Y. 414, 417, 95 N. E. 803; City of Ft. Wayne v. Bender, 57 Ind. App. 689, 105 N. E. 949; Ouimette v. City of Chicago, 242 Ill. 501, 507, 90 N. E. 300; Casey v. City of New York, 217 N. Y. 192, 111 N. E. 764; Carter v. City of St. Joseph, 152 Mo. App. 503, 133 S. W. 851; Barron v. White, 29 R. I. 482, 72 Atl. 644; Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42; White v. Stowe, 54 Vt. 510.

In Forsyth v. City of Oswego, 191 N. Y. 441, 445, 84 N. E. 392, 393 (123 Am. St. Rep. 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 invanced 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 referred, and it was asserted that such facts constituted a waiver of a defense on the part of the municipality arising from failure to serve his notice. It was held, however, that these facts did not constitute such a waiver, the court saying:

"If * the inaccuracy did not mislead the defendant or result in any respect to its prejudice, it should not be regarded as insufficient."

[3] Again, I think that this statement is not in accordance with the decisions of this court, 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 The defendant had the right to investigate the circumstances under which the claim arose behas not suffered in consequence of such fore deciding what action it would take. Muerror. 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, subsequent to the time when she was thus examined and gave a date corresponding with that given on the trial, she served her complaint, in which she reverted to and alleged the original incorrect date of August 20th. Therefore, by her last and controlling word on this subject, the defendant was authorized to believe that after all the correct date was August 20th, and that that would be the one which it was compelled to meet on the trial. Under all of these circumstances the law is perfectly clear that a claimant is not relieved from failure to comply with the statute because he has been examined as to the details of his claim, or because it might be supposed that the defendant has not suffered from a mistake in the notice.

In Winter v. City of Niagara Falls, 190 N. Y. 198, 205, 82 N. E. 1101, 1103 (123 Am. St. Rep. 540, 13 Ann. Cas. 486), it appeared that the plaintiff had failed to present a claim for damages resulting from his alleged injuries within the time specified by the statute, but the Appellate Division were of the opinion that the defendant had waived compliance with the provisions of its charter which would have barred the action. It was claimed that this waiver had been accomplished by subpœnaing the plaintiff to appear and submit to an examination which was conducted by the city attorney. It was held by this court that such examination did not amount to a waiver, but simply to a discharge

521, 523, 86 N. E. 560, 561, a notice was served which did not sufficiently designate the place of the alleged accident to plaintiff, and it was claimed that the retention of this notice by the defendant operated as a waiver of the requirement of the statute. The court, speaking through Judge Werner on this subject, said:

"The statute before us, reasonably construed, does not require those things to be stated with such a statement as will enable the municipal literal nicety or exactness, but it does require authorities to locate the place and fix the time of an accident. When a notice contains the information necessary for that purpose, it is when it falls short of that test it is insufficient." a substantial compliance with the statute, but

It was

In Cotriss v. Village of Medina, supra, the plaintiff failed to comply with the requirement of a statute that verified claims for damages for personal injuries resulting from defective streets should be served. claimed that plaintiff's failure to verify her notice did not result in any injury to the defendant, and therefore should be overlooked, but it was said in respect of this claim:

"It may be that the omission to present the proper writing or statement to the board did not result in any damage to the defendant. That is not the test. The requirement is absolute, and the question of whether injury resulted from the failure to comply with the explicit mandate of the statute is not open to proof or inquiry. If so, these and similar provisions intended to safeguard municipalities against the imposition of unjust claims would be nullified." 139 App. 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 insufficient in respect of the statement of the place of the accident. It was claimed, however, that this defect should be disregarded because the city had no difficulty in finding the place where the accident happened, and had suffered no harm as the result of the defect. But it was said by this court through Judge Pound:

So, as it seems to me, we come to the only possible theory on which plaintiff can ask to be relieved of her error in the statement of the time of the accident, and this is the one that her notice was a substantial compHance with the statute. I think it was error for the court to submit this question as one of fact to the jury. City of Ft. Wayne v. Bender, 57 Ind. App. 689, 105 N. E. 949, 950. But if the court would have been justified in holding as a matter of law that a notice failing by 8 days to state the correct time of an accident was nevertheless a substantial

"No one could from the notice locate the place with accuracy, and plaintiff is wholly without excuse for this defect. * The city had no difficulty in finding the spot where plaintiff fell 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 consideration that a notice stating within 1 day the correct time of an accident might be regarded as a substantial compliance with the statute, although in the latter case a judgment in favor of the plaintiff was reversed, and what was said on this point was more or less dictum.

See, also, Rauber v. Village of Wellsville, 83 App. Div. 581, 82 N. Y. Supp. 9; Ouimette v. City of Chicago, supra; Sowle v. Tomah, 81 Wis. 349, 51 N. W. 571; Shea v. Lowell, 132 Mass. 187; Dalton v. Salem, 139 Mass. 91, 28 N. E. 576.

It is also true that it has been held in various cases that a notice stating that the accident occurred "on or about" a certain date

As I have stated, I know of no difference in binding effect between the requirements for the statement in such a notice of the time and of the place, and it seems to me that under the cases which have been cited the plain-would be regarded as a sufficient compliance tiff is not excused, either on the ground that there had been a waiver of a requirement of the statute, or that the defendant had not suffered as the result of her mistake.

The cases of Sheehy v. City of New York, 160 N. Y. 139, 54 N. E. 749, and Walden v. City of Jamestown, 178 N. Y. 213, 70 N. E. 466, do not sustain any such proposition as is urged in behalf of the plaintiff.

In the Sheehy Case the only claim was that the notice was deficient in failing to state in explicit terms an intention to commence an action, and it was held that it fulfilled the purpose of the statute by informing the corporation counsel of the nature of the claim, the place where and the circumstances under which it arose and of a purpose to enforce it a very different case, as it seems to me, than one where the plaintiff has failed to make a correct statement of the time or place of an accident.

with the statute when the date stated was the one on which the accident actually occurred. Murphy v. Village of Seneca Falls, 57 App. Div. 438, 440, 67 N. Y. Supp. 1013; BrenThis doctrine, however, has been denied in ner v. City of Chicago, 182 Ill. App. 348. this state. Lee v. Village of Greenwich, 48 App. Div. 391, 394, 63 N. Y. Supp. 160.

When, however, we pass these cases and come to those dealing with a clear misstatement of the date of the accident, we find that an error of 10 days or less in the notice of an accident has been held fatal, and not to be excused upon the theory of a substantial compliance.

In the Ouimette Case, already cited, there was an error in the statement of the date of a month, and, of course, that was so much more serious than the one now before us that the case is not a controlling authority. Nevertheless, there will be found in the opinion a discussion which impliedly upholds the prop-: osition now being advanced that the error in this case is too serious to be overlooked.

In Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42, it was held that a mistake of 3 days was fatal.

In the Walden Case it was simply held that plaintiff should not be deprived of his right to bring an action because of his failure within 48 hours to serve notice, stating the place where the accident occurred, when it appeared that literal compliance with the statute was impossible because of plaintiff's

In Barron v. White, 29 R. I. 482, 72 Atl. 644, a mistake of only 1 day was held to be