[225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J. [Jan., from the comptroller promptly he will be compelled to place it in the hands of an attorney. This seems to us to be fairly a notification that a suit would be begun. The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event. Action to recover MCLAUGHLIN, J. (dissenting). damages for a personal injury sustained by stepping into a hole in one of the streets of the city of New York. Plaintiff was nonsuited at the trial on the ground that the notice served was insufficient under the statute. Judgment to this effect was entered, which was unanimously affirmed by the Appellate Division. Leave was given to appeal to this court. I am unable to concur in the decision about to be made reversing the judgment appealed from and granting a new trial. The statute (Laws of 1886, chap. 572) provides that an action to recover damages against any city of the state having a population of 50,000 or over, on the ground of negligence, cannot be maintained "unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have accrued." * * * Section 261 of the Greater New York charter provides: "No action * * * shall be prosecuted or maintained against the City of New York, unless it shall appear by and as an allegation in the complaint that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment * * * * 1919.] Dissenting opinion, per MCLAUGHLIN, J. [225 N. Y.] On The plaintiff was injured on the 15th of March. the 18th of March her father, acting for her, mailed a letter addressed to the "Finance Department" of the city, stating: "I wish to notify you of a serious accident to my daughter, Johanna F. Sweeney, which happened Saturday evening, March 15th, on Pacific Street, near Bedford Avenue, Brooklyn. "On the side of Pacific Street near the 23rd Regiment Armory there is a coal or vent hole in the sidewalk, over which has been placed a wooden cover, which protrudes two or more inches above the sidewalk, one portion of which is broken off, and while walking along she struck her foot against said cover and has either broken or sprained her ankle very badly. * * 66 Trusting you will give this matter the necessary attention." On the 20th of March the deputy comptroller acknowledged receipt of the letter and stated that the communication had been entered as a claim and "referred to the Division of Claims of this Department for investigation." On the 17th of June following, plaintiff's father mailed another letter, addressed to the "Finance Department," in which, after referring to the letter of the 18th of March, he said: "I feel that this matter has gone long enough without some attention being paid to it on your part and I trust you will give the matter immediate attention. I have tried to place this matter before you in a business way, feeling that you would treat it the same, and evidently it is being passed up with very little attention being given it. I hope to hear from you within the next few days; otherwise I will be compelled to place the matter in the hands of an attorney." The receipt of this letter was acknowledged by the deputy comptroller and plaintiff's father informed that the claim had been referred to the corporation counsel [225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J. [Jan., for an opinion as to the liability of the city. Both of the letters from plaintiff's father were sent by the comptroller to the corporation counsel for the purpose of obtaining his opinion as to whether the city were liable. The corporation counsel advised the comptroller that the city was not liable and the comptroller thereupon so informed plaintiff's father. This action then followed. The only allegation in the complaint as to filing notice of the claim or of an intention to sue is found in paragraph eleven, which reads as follows: "That immediately after said accident occurred and on the 18th of March, 1913, the plaintiff caused to be filed a notice with the Comptroller of the City of New York of her intention to commence this action, and of the time when and place where her damages were incurred or sustained. That said Comptroller, within six months after the happening of said accident, caused said notice of plaintiff's intention to commence such action served on him as aforesaid, to be transmitted to the Corporation Counsel of the City of New York, and said notice was actually acted upon by said Corporation Counsel and the said Corporation Counsel investigated said accident and reported thereon. That neither the Comptroller of the said City, nor the Corporation Counsel of the said City, have made any adjustment or settlement of said claim." When the action came on for trial the learned trial justice, no motion or request having been made by either party, said: "On looking over the papers I shall have to dismiss the complaint on the ground that the notice is insufficient and that the city is not liable. If you wish testimony you may put in just what is necessary for the purpose of reviewing the question. The notice will be put in, of course." Thereupon the counsel agreed if the case could be postponed for two days the facts could be agreed upon. This was done and the statement of facts set forth in the record agreed upon. 1919.] Dissenting opinion, per McCLAUGHLIN, J. [225 N. Y.] There are three reasons which, as it seems to me, prevent a recovery by plaintiff: (1) The notice required by the statute was not filed; (2) no notice was ever filed by plaintiff, or any one acting for or on her behalf, with the corporation counsel; and (3) the complaint does not state a cause of action. First. The letter of March 18th, which is the one alleged in the complaint to constitute a notice, is not such notice as the statute requires. That letter does not contain a word indicating an intention to sue, which is a prerequisite to the maintenance of an action of this character. The letter of June 17th recognized this fact; otherwise there is no meaning to the statement, “I have tried to place this matter before you in a business way, feeling that you would treat it the same." Nor do I think the letter of June 17th contained a statement, if the claim were not paid, of an intention to sue. It is true the statement is therein made that plaintiff would be compelled to place the matter in the hands of an attorney, but this was not equivalent to a statement that unless the claim were paid an action would follow. Claims are usually, in the first instance, placed in the hands of an attorney for the purpose of obtaining his advice as to whether an action should be commenced. The notice which the statute here requires is one from which it can be seen that unless the claim is adjusted an action will be brought. Neither of these letters, nor both of them taken together, constitute such statement. Not only this, but I do not think that the notice required can be made up of a series of letters mailed to the finance department of the city. The notice contemplated by the statute must consist of a definite statement in writing, filed, not in the finance department, but with the corporation counsel. Filing the claim with the proper official goes to the jurisdiction and the right to any recovery whatever. The right of a party to recover for personal injuries of the [225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J. [Jan., character of the one under consideration is given by the statute and the conditions therein provided as to procedure must be strictly complied with. The words used are not obscure. The action cannot be maintained unless the notice "shall have been filed with the counsel to the corporation." To constitute a filing there must have been a delivery by or on behalf of the party making the claim at the office of the corporation counsel. This court, in principle, so held in Gates v. State (128 N. Y. 221). The statute having prescribed the procedure, a party must bring himself strictly within the terms laid down. This seems to have been the view of this court, as indicated in recent decisions. (Tynan v. City of New York, 223 N. Y. 596; Weisman v. City of New York, 219 id. 178; Casey v. City of New York, 217 id. 192; Purdy v. City of New York, 193 id. 521.) Second. The plaintiff never intended to and never did file a notice with the corporation counsel. The letters were addressed to the finance department. But it is said that because the comptroller submitted these letters to the corporation counsel for his opinion as to the liability of the city, that that constituted a "filing" as required by the statute. The corporation counsel is the legal adviser of the comptroller. The latter not only has the right, but it is his duty if in doubt as to the validity of a claim, to go to the corporation counsel for advice. That is all the comptroller here did. When he sent the letters to the corporation counsel he was acting, not for the plaintiff, or on her behalf, but solely for the city. To hold that this constituted a filing within the terms of the statute is to destroy its beneficial effect. Third. The complaint does not state a cause of action. There is no allegation in it to the effect that the notice required by the statute had been filed with the corporation counsel by the plaintiff or that at least thirty days had elapsed since the claim was presented to the comp |