App. Div.]

Third Department, March, 1908.

with any office or give him any claim for compensation against the

State.

Section 93 of the State Charities Law (as and. by Laws of 1904, chap. 462) makes the superintendent of the Rome asylum its chief executive officer and charges him with the duty of appointing clerks, bookkeepers and all subordinate employees and of discharging them when in his judgment it is necessary for the good of the institution. Section 17 of the State Finance Law, as amended by chapter 383 of the Laws of 1899, chapter 432 of the Laws of 1901, and chapter 239 of the Laws of 1903, requires the State Comptroller and president of the State Board of Charities to fix the salaries or wages of such employees subject to the approval of the Governor. The appellant has not been appointed to any position by the superintendent of the institution, nor has his salary or wages been fixed as required by statute. His claim for compensation is based solely on an appointment by the board of managers which they were without legal authority to make. Whatever services he has performed have been under such unauthorized appointment, and were merely such as were required of other officers or employees of the institution.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with costs.

MARTIN TILLMAN, Respondent, v. WILLIS A. RAYNER, as Executor, etc., of ANDREW B RAYNER, Deceased, Appellant.

Third Department, March 11, 1908.

Evidence - personal transactions with decedent.

In an action against the estate of a decedent on an account stated where the defense is payment by check, and where it appears that the check was not paid in the ordinary manner through the bank on which it was drawn, but was found among the decedent's possessions after his death indorsed by plaintiff, it is reversible error to allow the plaintiff to testify that he had never received money on the check, or that he had never seen the check until after the decedent's death. Such evidence is inadmissible under section 829 of the Code of Civil Procedure, as it concerns a personal transaction with the decedent.

[Vol. 125.

Third Department, March, 1908. APPEAL by the defendant, Willis A. Rayner, as executor, etc., from a judginent of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 3d day of May, 1907, upon the report of a referee.

Richard H. Thurston, for the appellant.

Frank A. Bell, for the respondent.

COCHRANE, J. :

The learned referee has found that on June 10, 1902, the plaintiff and the defendant's testator stated an account between themselves which showed a balance of $721.27 due from said testator to the plaintiff. This finding is not criticised.

Defendant introduced in evidence a receipt dated on said 10th day of June, 1902, for the sum of $600 in full settlement of the above-mentioned stated account, which receipt purported to have been signed by the plaintiff. A check of the same date on the First National Bank of Waverly to the order of plaintiff for $600, reciting in the body thereof "settlement of ac. stated" and signed by the testator was also introduced in evidence. Evidence was given tending to show that the receipt was given in acknowledgment of the check and that the latter was delivered by the testator to the plaintiff at the time said account was stated. The check was not paid in the ordinary manner through the bank, but after the testator's death it was found among his possessions by the executor with an indorsement purporting to be that of the plaintiff, and there was evidence that such indorsement was genuine.

Plaintiff disputed the delivery, indorsement and payınent of the check and also the said receipt. The referee made no finding as to the delivery of the check, but on the question of payment thereof found adversely to the defendant.

The main controversy on the trial was as to whether or not the check had been paid. Plaintiff as a witness in his own behalf testified that he had never received any money on the check. Such testimony was duly objected to on the ground that it was inadmissible under section 829 of the Code of Civil Procedure, and to the ruling of the court admitting it an exception was taken. This testimony concerned a personal transaction with the deceased and bear

App. Div.]

Third Department, March, 1908.

ing comprehensively and pertinently as it did on the vital issue in controversy its presence in the case is fatal to the judgment. (Howell v. Van Siclen, 6 Hun, 115; affd., 70 N. Y. 595; Brayman v. Stephens, 79 Hun, 28; Haughey v. Wright, 12 id. 179.)

Plaintiff also testified over an appropriate exception that he had never seen the check until a specified date, which was after the testator's death. The force of this testimony lay in its tendency to establish not only non-payment, but also non-delivery of the check. A witness had testified that the testator handed the check to the plaintiff at the time of the settlement of the account and that the plaintiff took it away with him. Plaintiff could not very well more effectively or forcibly deny the transaction with the deceased than by giving this testimony now under consideration. It clearly concerned a personal transaction with the deceased.

The judgment must be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concurred.

Judgment reversed on law and facts. Referee discharged and new trial granted, with costs to appellant to abide event.

MARTHA A. HUNGERFORD, Respondent, v. THE VILLAGE OF WAVERLY and Others, Appellants.

Third Department, March 11, 1908.

Municipal corporation - village - injury on defective sidewalk - failure to file verified claim - trustees and street commissioners not individually liable - pleading - conclusions of law not admitted by demurrer.

A failure to file the verified statement of a claim against a village within six mouths after the cause of action accrues as required by section 322 of the Village Law is not excused when it appears that the plaintiff instead of filing her claim as soon as she was in a mental and physical condition to do so, or within a reasonable time thereafter, delayed more than four weeks after she was able to transact business.

One of several village trustees cannot waive a condition upon which the liability of the village depends, and hence, a promise by one trustee to bring a claim for personal injuries before the board at its meeting and inform the claimant

Third Department, March, 1908.

[Vol. 125.

of the decision is not a waiver of her failure to file the verified claim required by the statute.

Although the statute places the streets of a village under the exclusive control and supervision of the board of trustees, they are not liable as individuals for personal injuries received by reason of a defect therein, for their negligence is that of the corporation.

Neither is the street commissioner of a village personally liable for such injuries, where it does not appear that the board of trustees had determined that the defect should be repaired and directed him to do so.

Although the complaint in an action to recover for such injuries alleges that the street commissioner by virtue of his office was under the duty to keep the streets in repair, the allegation is a mere conclusion of law not admitted by demurrer.

APPEAL by the defendants, The Village of Waverly and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 27th day of August, 1907, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the defendants' demurrers to the complaint.

Frank A. Bell, for the appellants.

Charles C. Annabel, for the respondent.

SEWELL, J.:

This action was brought to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the defendants. The complaint alleges that the plaintiff was injured on the 21st day of June, 1906, by stepping into a hole in a plank sidewalk on the east side of Waverly street in the village of Waverly, and that on the 3d day of January, 1907, she filed with the village clerk a written verified claim for damages.

The defendant, the village of Waverly, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and each of the other defendants joined in the demurrer upon the same ground.

Three questions are presented for our determination. The first, whether the plaintiff substantially complied with the requirements of section 322 of the Village Law with respect to the filing of a verified statement of the nature of her claim; the second, whether the president and trustees of the village are individually liable, and

App. Div.]

Third Department, March, 1908.

the third, whether a cause of action is stated against the street commissioner of the village.

The respondent concedes that the filing of the required statement, within six months after the cause of action accrued, is by the express terms of the statute a condition precedent to the commencement of an action against the village, and that such an allegation is an essential part of the complaint. She claims to have avoided the effect of the omission by alleging as an excuse for the failure "that the reason of not filing the claim before was because of the physical incapacity of said plaintiff by reason of said injuries received aforesaid, and also from the fact that in a conversation in the month of August, 1906, had with one Howard, one of the defendants herein, a trustee of said village and one of the committee on sidewalks, in which she stated to him the nature and circumstances of her injuries caused by the defective walk aforesaid, and requested him to bring it before the trustees of aforesaid village with a view of settlement; that he promised to bring the claim before the said trustees at their meeting and would inform her as to the decision; that the plaintiff was not informed thereafter by said Howard and did not learn of the decision of said trustees until about the time of filing the aforesaid verified claim."

The complaint also alleges: "That for a period of time after the said injuries [were] received she was unable to write or concentrate her mind upon any work for some time thereafter as a result of the nervous shock."

There is no allegation as to how long she was unable to write or concentrate her mind or remained incapable of filing the statement required by the statute. No fact is alleged tending to show that the plaintiff did not have a reasonable time in which to prepare and file the statement after she had recovered from the shock and before the expiration of the period of limitation. The contention of the plaintiff seems to be that the statutory statement may be filed within six months after the incapacity is removed. The only authority for this doctrine is found in Forsyth v. City of Oswego (114 App. Div. 616), decided by a divided court. It seems to me reasonably clear that we cannot follow this decision unless we can by judicial legislation fix a different limitation than that prescribed by the statute. The Legislature having distinctly stated that no