§ 95. Substantial compliance necessary.

Such statutes are to be strictly construed and substantial compliance with the provisions thereof will be enforced. Thus, since the object of the statutes is to provide an opportunity to examine the claim, to pass upon the amount and determine the justice of it, the notice must be a reasonably definite statement of the basis of the claim. And where the claim was for personal injuries resulting from a defect in a street a mile long, the notice which did not designate any particular place on the street, was insufficient.

"The statute before us, reasonably construed, does not require those things to be stated with literal nicety or exactness, but it does require such a statement as will enable the municipal authorities to locate the place and fix the time of the accident. When a notice contains the information necessary for that purpose, it is a substantial compliance with the statute, but when it falls short of that test it is insufficient." Purdy v. City of New York, 193 N. Y. 521.

In Johnson v. City of Troy, 48 N. Y. Supp. 998, 24 A. D. 602, the statute required that the notice should state the claimant's residence by street and number. The house in which the plaintiff lived was not numbered, and, therefore, it was impossible for him to comply with the statute in that respect. But he also failed to state the name of the street upon which he resided and the court held that to be a fatal defect.

In Sheehy v. City of New York, 160 N. Y. 140, reversing 51 N. Y. Supp. 519, 29 A. D. 263, the plaintiff filed with the corporation counsel, through her attorney, a statement which set forth that she made a claim for damages for personal injuries, but did not clearly state her intention to commence an action, as required by statute. The lower court held that the statute had

to be strictly construed and that the failure to set forth clearly the intention to commence the action was a fatal defect.

Evidence had been offered on the trial to show that the corporation counsel upon receipt of the notice entered the same in a book which was kept for filing notices of intention to commence actions. The court excluded this evidence which would have proven that the corporation counsel regarded the notice as sufficient. The court holds that the notice was sufficient, saying:

"While in an action like this the statute must be substantially complied with or the plaintiff cannot recover, still where an effort has been made and the notice served, and such is construed to accomplish the object of the statute, it should be regarded as sufficient."

In Missano v. Mayor of New York, 160 N. Y. 123, where the notice of intention to sue should have been filed with the corporation counsel but was filed with the comptroller, who forwarded it to the corporation counsel, the notice was upheld as sufficient. The court said:

"The statute neither prescribes a form of notice nor by whom the notice shall be filed, and while its proper construction might require that the notice be given to the party commencing the action, its provisions are not so rigid as to invalidate the notice if actually received by the corporation counsel, because received by him through another official with whom it was mistakenly filed by the parties.

This case is distinguished from Gates v. State, 128 N. Y. 221, where a notice was sent by mail. The jurisdiction of the board of claims depended upon its receipt. There was no presumption of the receipt of the claim because it was sent through the mail.

See also Weinstein v. City of New York, 141 N. Y. Supp. 732, 156 A. D. 541.

§ 96. Verbal notice.

Verbal notice of intention to sue, accompanied by a statement of claim, is insufficient. De Vore v. City of Auburn, 71 N. Y. Supp. 747, 64 A. D. 84.

§ 97. Officials cannot waive.

The requirements of the statute as to notice cannot be waived by the municipal officials. A retention of a notice which is insufficient, and an investigation of the claim mentioned therein, does not and cannot amount to a waiver of the defects. Borst v. Town of Sharon, 48 N. Y. Supp. 996, 24 A. D. 599; McDonald v. City of New York, 59 N. Y. Supp. 16, 42 A. D. 263; Cotriss v. Village of Medina, 124 N. Y. Supp. 507, 139 A. D. 872; Purdy v. City of New York, 193 N. Y. 521; Walden v. City of Jamestown, 178 N. Y. 217; Carson v. Village of Dresden, 202 N. Y. 414; Winter v. City of Niagara Falls, 190 N. Y. 198.

§ 98. Personal service unnecessary.

The officer upon whom the notice is to be served may designate a subordinate to receive it.

"It is quite evident that the most strict construction of the statute would not require an absolute personal delivery to the comptroller. The onerous and multifarious duties devolved upon the comptroller of this great municipality exclude such construction, and, as the act of receiving and filing a claim is a purely ministerial act, the comptroller could appoint a clerk or clerks for such purpose. This seems to be admitted by appellant. But it is asserted that he could not appoint an auditor of a borough to perform such duty. Cer

tainly it would not be denied that the comptroller could designate the auditors, or any of them, in the main office of the comptroller, to receive and file such claims, or appoint any other person for such purpose. McDonald v. City of New York, 59 N. Y. Supp. 16, 42 A. D. 263.

See also Missano v. Mayor of New York, 160 N. Y. 123; McMahon v. Mayor of New York, 37 N. Y. Supp. 289, 1 A. D. 321.

$99. Verification.

Where verification of the notice is required the statute must be complied with. It will not be sufficient to serve a verified complaint after the notice. Cotriss v. Village of Medina, 124 N. Y. Supp. 507, 139 A. D. 872; Frank v. City of New York, 75 Misc. 472, 133 N. Y. Supp. 434.

§ 100. Extension of time; impossibility of compliance.

It has been held, in the case of actions for personal injuries, that if the plaintiff has been so injured as to make compliance with the statute impossible within the time fixed, that the plaintiff's time is reasonably extended. What is a reasonable time is a question of fact. In other words, the service of the notice as soon as it can reasonably be served after the disability is removed is a substantial compliance with the statute, within the meaning of the authorities heretofore cited. Winter v. City of Niagara Falls, 190 N. Y. 198; Forsyth v. City of Oswego, 191 N. Y. 441; Walden v. City of Jamestown, 178 N. Y. 213; Murphy v. Village of Ft. Edward, 144 N. Y. Supp. 451, 159 A. D. 471.

§ 101. Amendment of complaint.

The plaintiff is not limited to the exact amount mentioned in the notice, but the court has power to

permit an amendment of the complaint so as to demand judgment for a larger amount.

In Eggleston v. Town of Chautauqua, 86 N. Y. Supp. 279, 90 A. D. 314, the court says:

"No provision is made by statute for amending the statement after it was served and no new statement can be served after the expiration of six months after the accident. In this case the real nature and extent of the injury was not discovered until six months had expired. The statement is to be of the cause of action' it might well state the nature and extent of the injuries sustained and the amount of damages claimed therefor, but the amount of damages would be merely an estimate and the plaintiff would not be restricted to the amount named."

See also Reed v. Mayor of New York, 97 N. Y. 620.

§ 102. Not retroactive.

Such statutes are not applicable to cases arising before the enactment of the statute unless expressly so provided in the statute. Sehl v. City of Syracuse, 81 N. Y. Supp. 482, 81 A. D. 543.

§ 103. Must be by claimant or agent.

The notice of claim must be presented by the claimant or his duly authorized representative. The fact that notice of the existence of the claim has come to the proper official indirectly does not excuse compliance with the statute. It was so held in Ruprecht v. City of New York, 92 N. Y. Supp. 421, 102 A. D. 309.

In this case the plaintiff was hired as an expert by a deputy commissioner. He submitted his bills to the commissioner who approved of them, prepared vouchers and sent them to the head of department, by whom they were forwarded to the comptroller, who exam