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Karr v. Village of Alfred

Supreme Court of New York, Appellate Division

December 29, 1911

RAYMOND KARR, by LEROY L. KARR, His Guardian ad Litem, Respondent,
v.
THE VILLAGE OF ALFRED, N.Y. , Appellant.

Page 436

APPEAL by the defendant, The Village of Alfred, N.Y. , from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 19th day of January, 1911, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 14th day of February, 1911, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Jesse S. Phillips, for the appellant.

Clayton M. Smith, for the respondent.

OPINION

WILLIAMS, J.:

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

The action was negligence. The accident was a fall on a defective sidewalk. It occurred September 1, 1907. The boy was only eight years of age. The Village Law (Laws of 1897, chap. 414, ยง 322) then provided: 'No action shall be maintained against the village for damages for a personal injury, or an injury to property, alleged to have been sustained by reason of the negligence of the village, or of any officer, agent or employe thereof, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless a written verified statement of the nature of the claim, and of the time and place at which such injury is alleged to have been received, shall have been filed with the village clerk within six months after the cause of action shall have accrued. An action on such a claim shall not be commenced until the expiration of thirty days after it is presented.'

The action was commenced September 1, 1908, just within one year after the cause of action accrued, but there was controversy on the trial as to whether the written verified statement, required by this section, was filed with the village clerk within six months after such cause of action accrued. A paper was presented at the trial, and is before us here, which is all

Page 437

typewritten, except the signature of the affiant, and the signature of the notary public, with his official designation and seal, of which the following is a copy:

'STATE OF NEW YORK, )

) ss.

COUNTY OF ALLEGANY. )

'L. L. KARR, being duly sworn, deposes and says that he resides in the Town and Village of Alfred, Allegany County, New York; that he is the father of Raymond Karr, aged eight years in the month of May, 1907; that on or about the first day of September, 1907, said Raymond Karr was injured on Hill Street in the Village of Alfred, N.Y. , by falling on a cement sidewalk, on the side of the property of W. O. Place; that said Raymond Karr's injury consisted of an injury to the left shoulder and caused a paralysis of said left arm, and also said Raymond Karr suffered other injuries to his person, and especially to his nervous system to said Karr's injury in the sum of $100,000.00.

'L. L. KARR.

'Sworn to before me this )

6th day of February, 1908. )

'FORREST M. BABCOCK, Notary ...


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