Russell v. Mayor of New York , 1 Daly 263 ( 1863 )

By the Court.

Hilton, J.

The second section of the “Act relating to actions, legal proceedings, and claims against the Mayor, Aldermen, and Commonalty of the City of New York,” passed April 14, I860, declares that “ no action or special proceeding shall be prosecuted or maintained against the said the Mayor, Aldermen, &c. of New York, unless it shall appear by and as an allegation in the complaint or necessary moving papers, that at least twenty days have elapsed since the claim or ■claims upon which said action or special proceeding is founded were presented to the Comptroller of said city for adjustment, and not then unless it shall further appear by and as an ndditional allegation in the said complaint, that upon a second demand in writing being made upon the said Comptroller after the expiration of said twenty days, the said Comptroller neglected and refused to make an adjustment or payment thereof. If the plaintiff recover judgment in hi§ action or. in his special proceeding, he. shall recover full taxable costs without regard to the amount of judgment.”—Thus in effect providing a new or additional rule of pleading in all actions against the defendants, and requiring the plaintiff in his complaint, in addition to stating his cause of action, to allege, and if controverted, to prove at the trial, that he has presented his claim to the Comptroller, and that its payment or adjustment has been neglected or refused.

As this provision is obviously for the benefit of the defendants, and to save them from unnecessary expense in respect to claims which would be paid or adjusted if brought to their notice and a reasonable time given for their examination, it follows that they may waive it if they choose to do so ; and as the omission of the allegation would constitute a valid defence, it also follows that if they fail to take advantage of it by their answer they should he regarded as having expressly waived it.

By the Code, (Sec. 149) the answer must contain a statement of any new matter relied on as constituting a defence, and an omission in this respect is equivalent to conceding that no such defence exists.

Here, there was no such waiver or concession. The defendants did set tip in their answer as a distinct ground of defence, and as an objection against the plaintiff’s maintaining or prosecuting his actión, the fact that the complaint did not contain the required allegation. The plaintiff went to trial with knowledge that this omission would be relied on as a defence, and the objection was then taken upon the motion to dismiss the complaint. He cannot therefore complain of surprise, and the presiding Judge should have held him to the consequences of liis omission by granting the motion. The fact that the Judge did not do so, but permitted the case to go to the jury, who rendered a verdict in the plaintiff’s favor, cannot help him, as he acquired no additional rights by the erroneous decision against the defendants, who had in no way waived their objection, but on the contrary, had presented it in a proper manner and at the fit -time.

Bnt it is contended that the claim of the plaintiff was not of such a character as the Comptroller would have been authorized to adjust had it been presented to him, and that therefore as its presentation would have been an idle ceremony, the allegation in that respect should not be required to be inserted in the complaint. The answer to this view, however, is twofold. 1st. The statute in terms declares that no action shall be maintained or prosecuted against the defendants unless such an allegation appears in the complaint, and 2d. The Charter of 1857, Sec. 1, Laws 1857, p. 874, Sec. 22, specifically provides that the Department of Finance, a department of the defendants, of which the Comptroller is the chief officer, “ shall settle and adjust all claims in favor of or against the Corporation, and all accounts in which the Corporation is concerned, either as debtor or creditor,”—a provision broad enough to include claims of every nature and description.

For these reasons the judgment should be reversed, and the complaint dismissed with costs to the defendants.

Judgment reversed.