Reining v. City of Buffalo, 102 N. Y., 308. 16 taken, but that it should be affirmatively alleged and proved 15 by the plaintiff. It is competent for them to attach a condition to the maintenance of a common law action as well as one created by statute, and, when they have done so, its averment and proof cannot safely be omitted. The Court, in Nagel v. City of Buffalo (34 Hun, 1), in considering the statute in question, seemed to think its requirement was in the nature of a condition subsequent or proviso, having no necessary connection with the proper statement of a cause of action, but we think they erred in their conception of the nature of the provision. Neither its language or object is analogous to those provisions authorizing the defense of the statute of limitation, or other special and particular defenses constituting conditions subsequent, which may or may not occur in particular cases, and must, therefore, be averred to authorize the court to take cognizance of them. Here the requirement exists, independent of proof, in every case, and is made to precede the institution of any suit whatever. Its performance cannot for any purpose be presumed, but must, to be availed of, be alleged and proved. The language is "that no action" 17 "shall be brought" until, etc., and constitutes an express prohibition against the action, until performance of the condition. A non-compliance with this requirement can be raised by the defendant, at any stage of the action, when it is called upon to act in the case. The general rules of pleading applying to such cases are elementary and hardly need citations to illustrate them. It was said by Judge Denio in Howland v. Edmonds (24 N. Y., 307): "If the defendant's liability depends upon the performance of a condition precedent, it is very plain that no action 18 will lie until it be performed, and a request or demand of the thing claimed may and frequently does constitute such a condition to the obligation of the defendant. When that is the case, such demand before suit brought must be averred and proved to enable the plaintiff to maintain the action." The rule is also illustrated by the decision in Graham v. Scripture (26 How. Pr. 501), where, in an action upon a judgment, which was prohibited by statute, except upon leave of the court first had, it was held 20 Reining v. City of Buffalo, 102 N. Y., 308. 19 that the allegation of such leave must be averred and proved by the plaintiff. It was held in Taylor v. Mayor, etc. (83 N. Y., 625), that a similar provision in the charter of New York constituted a condition to the maintenance of an action against the city, although in that case it was also held that it did not in terms apply to the use of a claim by way of set-off, or recoupment in an action brought by the city against the claimant. The case of Porter v. Kingsbury is analogous to the case in hand. There suit was brought upon an undertaking on appeal which the statute directs shall "not be maintained" until ten days after service of notice of the entry of judgment of affirmance upon the appellant. It was held that performance of the requirement was a condition precedent and must be alleged in the complaint. (§ 1309, Code of Civ. Pro.; Porter v. Kingsbury, 5 Hun, 597; affirmed 71 N. Y., 588.) There the act required to be performed constituted no part of the cause of action, but was provided, as in this case, to shield the parties liable from cost and trouble in case of their willingness to pay the claim without suit, after notice given. It is immaterial whether a condition be 21 imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law, the complaint must, by the settled rules of pleading, state every fact essential to the cause of action as well as those necessary to give the court jurisdiction to entertain the particular proceeding. 22 The dicta in Minick v. Troy (83 N. Y., 514, 516) with reference to a similar requirement, that it was necessary for the plaintiff to "show in the first instance that the claim for which the action was brought was presented to the comptroller," accords with these views, and is further supported by the case of Fisher v. Mayor, etc., (67 N. Y., 73), where the liability arose under the statute authorizing the city to acquire lands by right of eminent domain. The act there provided for compensation by the city, and authorized suit to be brought therefor upon an award, and "after application first made to the mayor," etc., "for payment." It was held that this requirement constituted a condition precedent to the maintenance of an action. The liability to pay in that case existed by force of the Constitution, Mayor, etc., of New York v. Dimmick, 20 Abb. N. C., 15. and the statute only regulated the method by which the amount 23 was to be determined, and the mode of enforcing payment thereof. The case does not in principle seem to be distinguishable from that under discussion. We also referred to a number of decisions in the courts of our sister states upon statutes quite similar to that of the Buffalo charter, in which the want of an allegation of presentation and demand has been held demurrable. (Jones v. Minneapolis, 31 Minn. 230; Benware v. Pine Valley, 53 Wis., 527; Maddox v. Randolph Co., 65 Ga., 216; Marshall Co. v. Jackson Co., 36 Ala., 24 613.) We agree with the conclusions reached in those cases. The judgment appealed from should be affirmed. All the judges concurred. Judgment affirmed. MAYOR, ETC., OF NEW YORK v. DIMMICK. [Reported in 20 Abb. N. C., 15.] 1. A municipal corporation may maintain an action against a property owner for damages sustained by reason of being compelled to pay a judgment recovered against it for an injury caused by the defective condition of the street, such defect being due to the negligence of the property owner*. 2. A complaint by the city against the property owner, alleging that the person injured commenced an action against the plaintiff, and recovered a judgment; and that the injuries for which the judgment was obtained were caused by the negligent act of the defendant, is sufficient, on demurrer although it does not allege all the facts which would justify a recovery by the person injured against the city, such as notice to the city of the defect.† Demurrer to the complaint for insufficiency. *The generally accepted theory of these actions by the one liable per infortuniam to recover over from the one liable by his own fault is subrogation, that is to say, that they are actions for tort, in which the recovery against plaintif is the measure of damages, rather than actions on constructive contract for money paid to his use. See City of Rochester v. Campbell, 123 N. Y., 405 rev'g 55 Hun, 138. Compare Bailey v. Bussing, 28 Conn., 455, and Bank of Utica v. Childs 6 Cow., 238, and rote in 30 Abb. N. C., 180. +The question of the effect of the former judgment as evidence is or may be a quite different question. See City of Cohoes v. Morrison, 42 Hun, 216. The former judgment may be conclusive in its own favor in the second action, so far as it establishes the liability of the city, but it does not necessarily conclusively establish the liability of the present defendant, although he had notice to defend. 1 2 3 4 Mayor, etc. of New York v. Dimmick, 20 Abb. N. C., 15. The complaint alleged that the defendant had negligently allowed a conductor pipe on a house owned and managed by him to become and remain out of repair, so that the water gathered therein, was poured upon the sidewalk, both from the spout and leaks in that part of the pipe which was attached to the house; that in February, 1885, the water, so poured upon the walk, became frozen and rendered the highway uneven and` dangerous; that by reason of the unsafe condition of the walk, one Koerner suffered injuries, for which he recovered damages from the city in a suit brought in the Supreme Court; that the city incurred certain expenses in the defence of said action; that payment of the judgment and expenses was demanded but refused; and the relief demanded was for the amount of the said judgment and the amount expended by the city in said action. The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. INGRAHAM, J. The facts alleged in the complaint and admitted by the demurrer establish that the defendant maintained a nuisance in the public street of the city of New York, and that, in consequence of such wrongful act, plaintiff sustained damage by being compelled to pay a judgment recovered against it by one Koerner, and for the amount of such damages the complaint demands judgment. In Village of Port Jervis v. First National Bank (96 N. Y., 550, 555; aff'g 31 Hun, 107), it was held, that "this liability grows out of the affirmative act of the defendant, and renders him liable not only to the party injured, but also immediately liable to any party who has been damnified by his neglect. Liability in such case is predicated upon the negligent character of the act which caused the injury, and the general principle of law which makes a party responsible for the consequences of his wrongful conduct." The foundation of the liability, therefore, depends upon the wrongful act of the defendant. If in consequence of his negligence the street became unsafe, he would be responsible to any Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C., 181. person injured, whether the city had notice of the unsafe condi- 6 tion of the street or not. The plaintiff stands in the position of having been compelled to pay the damages caused by the wrongful act of the defendant; and, having been compelled to pay such damages, it asks to recover from the person whose wrongful act caused the injury the amount that it has been compelled to pay; and the wrongdoer cannot complain because the complaint. does not allege all the facts that would justify a recovery against the plaintiff so long as the complaint alleges the facts that show that the defendant is liable for the injuries for which the plaint- 7 iff was made liable. The allegation that the person injured commenced an action against the plaintiff and recovered a judgment, and that the injuries for which the judgment was obtained were caused by the negligent act of the defendant, is sufficient. Plaintiff should, therefore, have judgment on the demurrer, with costs, with leave to the defendant to withdraw the demurrer and answer within twenty days on payment of costs. HAWXHURST v. MAYOR, ETC., OF NEW YORK. [Reported in 15 Abb. N. C., 181.] Where two municipalities are jointly chargeable with the duty of maintaining a bridge or highway, an action will lie against either on an allegation of the joint duty and joint negligence. Demurrer to complaint, on the ground of a defect of parties. defendant. This action was brought against the Mayor, Aldermen and Commonalty of the city of New York to recover damages for an injury sustained by the plaintiff, in consequence of a defect I in the bridge known as Williams bridge, which it was the joint duty of the city and of the county of Westchester to maintain. The contents of the complaint are fully stated in the opinion. |