charter requirement in New York

1934For protective reasons, the conditions under which a municipality may be sued and held hable are prescribed by statute, enacted by the State Legislature, and are controlling with certain exceptions recognized by law.” In Winter v. City of Niagara Falls ( 190 N. Y. 198 ), where a charter required that a claim for personal injuries founded on negligence must be presented within thirty days, it was held that it was not a statute of limitations, the running of which would be suspended during infancy, the court also saying (at p. 203): “ To require the presentation of a claim within a specified tim

1931(Cotriss v. Village of Medina, supra; Commonwealth Water Co. v. Village of Castleton, 192 App. Div. 697 ; Winter v. City of Niagara Falls, 190 N. Y. 198 ; Weisman v. City of New York, 219 id. 178.) Because of the provisions of the charter and the ordinances mentioned above and following the precedents cited, we must reverse this judgment and dismiss the complaint.

1923City of Buffalo v. Preston, 81 App. Div. 480 .

1923(City of Buffalo v. Preston, 81 App. Div. 480 .) The city council has the power to enact this ordinance.

1903The court held this did not establish the notice intended by the charter requirement, saying: “It was not sufficient for the plaintiff to show that Mr. Armbruster was negligent in not discovering the defects, but, under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Armbruster had actual knowledge of the defect.” Nor are we of the opinion that the case of McNally v. City of Cohoes, 127 N. Y. 350 , 27 N. E. 1043—also a case of a fall upon an icy sidewalk, where the sufficiency of the notice under a simila

1903The court held this did not establish the notice intended by the charter requirement, saying: “It was not sufficient for the plaintiff to show that Mr. Armbruster was negligent in not discovering the defects, but, under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Armbruster had actual knowledge of the defect.” Nor are we of the opinion that the case of McNally v. City of Cohoes, 127 N. Y. 350 , 27 N. E. 1043—also a case of a fall upon an icy sidewalk, where the sufficiency of the notice under a simila

1983(See, also, Uniformed Sanitation Men Association, Inc. v Commissioner of Sanitation of the City of New York, 392 U.S. 280 [1968], decided the same day as Gardner , in which it was held that sanitation department employees were dismissed under the same provisions of the City's Charter in violation of their Fifth Amendment privilege against self-incrimination.) Subsequently, in cases involving similar statutes affecting contractors with the State ( Lefkowitz v Turley, 414 U.S. 70 [1973]) and party officials ( Lefkowitz v Cunningham, 431 U.S. 801 [1977]), these principles were upheld and the stat

1983(See, also, Uniformed Sanitation Men Association, Inc. v Commissioner of Sanitation of the City of New York, 392 U.S. 280 [1968], decided the same day as Gardner , in which it was held that sanitation department employees were dismissed under the same provisions of the City's Charter in violation of their Fifth Amendment privilege against self-incrimination.) Subsequently, in cases involving similar statutes affecting contractors with the State ( Lefkowitz v Turley, 414 U.S. 70 [1973]) and party officials ( Lefkowitz v Cunningham, 431 U.S. 801 [1977]), these principles were upheld and the stat

1983(See, also, Uniformed Sanitation Men Association, Inc. v Commissioner of Sanitation of the City of New York, 392 U.S. 280 [1968], decided the same day as Gardner , in which it was held that sanitation department employees were dismissed under the same provisions of the City's Charter in violation of their Fifth Amendment privilege against self-incrimination.) Subsequently, in cases involving similar statutes affecting contractors with the State ( Lefkowitz v Turley, 414 U.S. 70 [1973]) and party officials ( Lefkowitz v Cunningham, 431 U.S. 801 [1977]), these principles were upheld and the stat

1983The Fifth Amendment privilege against self-incrimination not only protects a person against being involuntarily called as a witness against himself in a criminal proceeding, but also from involuntary testimony in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings ( Lefkowitz v Turley, supra, p 77 ).

1959The necessary seven days could, in that contingency, be achieved only by including both December 16 and December 23, which would seem to be contrary to section 20 of the General Construction Law (see, also, Matter of Village of Lynbrook, 142 App. Div. 487, 490 ).

1934(Abell v. Clarkson, 237 N. Y. 85 .) The amendment to the charter in the cited case brought into the village new territory not previously subject to the old charter; so in the instant case the amendment imposed an obligation on the village not previously existing in favor of taxpayers who under the old charter had no claim thereto.

1934It permitted an investigation into the occurrence to be had at a time when the evidence relating to it might more readily be collected.” To the same effect is Murphy v. Village of Fort Edward ( 213 N. Y. 397 ).

1933In City of Rome v. Foot ( 175 App. Div. 459 ), in which, by the way, it was held that that particular action was a civil action, Judge De Angelis said (at p. 786): “ We are also of the opinion that three remedies are provided by the charter for a violation of an ordinance: (1) A criminal action; (2) a civil action begun by a summons, and (3) a civil action begun by a warrant.” Again in City of Buffalo v. Till ( 192 App. Div. 99 ) the question arose under the provisions of the Buffalo City Charter.

1933In City of Rome v. Foot ( 175 App. Div. 459 ), in which, by the way, it was held that that particular action was a civil action, Judge De Angelis said (at p. 786): “ We are also of the opinion that three remedies are provided by the charter for a violation of an ordinance: (1) A criminal action; (2) a civil action begun by a summons, and (3) a civil action begun by a warrant.” Again in City of Buffalo v. Till ( 192 App. Div. 99 ) the question arose under the provisions of the Buffalo City Charter.

1931(Barhite v. Home Telephone Co., 50 App. Div. 25, 30 .) The principal allegations of the complaint are (1) that the public hearings required by section 74 of the Greater New York Charter were not in fact held; (2) that the charter requirement that the board of estimate and apportionment inquire into the money value of the proposed franchise and the adequacy of the compensation therefor was not complied with; (3) that the required findings of the board of estimate and apportionment with respect to the money value of the franchise were not embodied in the form of contract published by the board;

1931(Cotriss v. Village of Medina, 139 App. Div. 872 ; affd., 206 N. Y. 713 ; Rogers v. Village of Port Chester, 234 id. 182; Ponsrok v. City of Yonkers, 254 id. 91.) The retention of the unverified claim by the city officers and the examination of the plaintiff by the corporation counsel under the provisions of section 363 of the city charter did not constitute a waiver of the charter requirement relating to the filing of a verified claim.

1931(Cotriss v. Village of Medina, supra; Commonwealth Water Co. v. Village of Castleton, 192 App. Div. 697 ; Winter v. City of Niagara Falls, 190 N. Y. 198 ; Weisman v. City of New York, 219 id. 178.) Because of the provisions of the charter and the ordinances mentioned above and following the precedents cited, we must reverse this judgment and dismiss the complaint.

1931(Cotriss v. Village of Medina, 139 App. Div. 872 ; affd., 206 N. Y. 713 ; Rogers v. Village of Port Chester, 234 id. 182; Ponsrok v. City of Yonkers, 254 id. 91.) The retention of the unverified claim by the city officers and the examination of the plaintiff by the corporation counsel under the provisions of section 363 of the city charter did not constitute a waiver of the charter requirement relating to the filing of a verified claim.

1931(Cotriss v. Village of Medina, supra; Commonwealth Water Co. v. Village of Castleton, 192 App. Div. 697 ; Winter v. City of Niagara Falls, 190 N. Y. 198 ; Weisman v. City of New York, 219 id. 178.) Because of the provisions of the charter and the ordinances mentioned above and following the precedents cited, we must reverse this judgment and dismiss the complaint.

1931Of these allegations I shall for the purposes of this motion disregard the third, in the light of the decision of this court in Browne v. Walker ( 131 Misc. 736 ) and because of the weight which courts give to the construction of statutory requirements by the officers whose duty it is to follow them.