#### A. C. BIGGS v. CITY OF ASHEVILLE.

(Filed 22 January, 1930.)

Municipal Corporations J a — Where complaint shows that claim of damages was not given within time prescribed by charter nonsuit is proper.

Where it appears upon the face of the complaint in an action against a city for damages that notice and claim of damages had not been given in the time required by the city charter as a prerequisite to the right of action, a judgment as of nonsuit is properly entered.

Appeal by plaintiff from Schenck, J., at June Term, 1929, of BuNCOMBE.

Civil action to recover damages for an alleged negligent injury resulting from certain street improvements.

The charter of the city of Asheville provides that no action for damages either to person or property shall be instituted against the said city unless within ninety days of the happening or infliction of the injury the plaintiff gives due notice to the board of commissioners of such injuries setting forth in such notice the date and place of happening of such injury, the manner and character of the same, and the amount of damages claimed therefor.

The plaintiff filed with the governing board of the city of Asheville on 2 February, 1928, a claim for damages for injuries alleged to have been sustained by him and his business and profession and for the loss of property by reason of the improvements placed on Woodfin Street by the defendant and set forth in said notice that the damages commenced to occur on the. day of August, 1925, and continued throughout the years 1925, 1926, and 1927.

From a judgment of nonsuit the plaintiff appeals, assigning errors.

J oseph W. Little and Kitchin & Kitchin for plaintiff.

George Permell for defendant.

*272Per Curiam.

It appears on the face of the notice filed by the plaintiff that the same was not given within the time, ninety days, required by the city charter, as interpreted in Dayton v. Asheville, 185 N. C., 12, 115 S. E., 827. It would seem, therefore, that the judgment of nonsuit was correctly entered.

Affirmed.