Opinion
December 7, 1962
Appeal from the Erie Trial Term.
Present — Bastow, J., Goldman, J.P., Halpern, McClusky and Henry, JJ.
Judgment unanimously reversed on the law and facts, without costs of this appeal to either party, and complaint dismissed, without costs. Memorandum: The City of Buffalo by Local Law No. 1 of the Local Laws of 1958 of the City of Buffalo, enacted February 26, 1958, amended its charter to provide that "no civil action shall be maintained against the city for damage or injuries to person or property sustained in consequence of any street, part or portion of any street * * * being defective, out of repair, unsafe, dangerous or obstructed * * * unless previous to the occurrence resulting in such damage or injuries written notice of such alleged condition relating to the particular place and location was actually given to the city clerk and there was a failure or neglect within a reasonable time thereafter to remedy or correct the alleged condition complained of." Calais Street was an unpaved dead-end public street in said city. It was full of holes or ruts. From time to time the city spread cinders upon the surface of the street, but the holes reappeared in a short time. The infant plaintiff riding a bicycle on the street on April 5, 1958 misjudged the distance from one of the holes in the street and the bicycle slipped into it, throwing her to the street. She sustained injuries. No written notice had been given to the city beforehand. The spreading of cinders and the subsequent erosion did not constitute the creation of a danger by the city. The action was barred by the charter provision. ( Fullerton v. City of Schenectady, 309 N.Y. 701.)