Chavers v. City of Mount Vernon

Froessel, J.

(dissenting). A somewhat different situation is presented here than in Matter of Martin v. School Bd. (Long Beach) ( 301 N. Y. 233 ), decided herewith. Thére we dealt with the procedure established by section 50-e of the General Municipal Law, whereby the court on application is given a limited discretion with respect to the serving of notices of claim. Here the complaint was dismissed on motion, and without a trial of the uncontroverted issue of impossibility of performance, alleged in paragraph eleventh of the complaint.

The requirement with respect to the serving of a notice of claim is “ an essential part of a complainant’s cause of action ”, and compliance must be pleaded like any other condition precedent, unless there is pleaded “ an excuse for delay in performance ”, caused by “ the inability of the injured person to comply.” (Winter v. City of Niagara Falls, 190 N. Y. 198, *637 203 ; Walden v. City of Jamestown, 178 N. Y. 213, 217 ; Whiteside v. North Amer. Accident Ins. Co., 200 N. Y. 320, 323 .) Here there is such a plea in a common-law action, and thus an issue of fact is presented on which plaintiff is entitled to a trial by jury or by a trial court if the jury is waived. (Russo v. City of New York, 258 N. Y. 344, 348 ; Forsyth v. City of Oswego, 191 N. Y. 441, 444 ; Smith v. Western Pacific Ry. Co., 203 N. Y. 499 ; McGurty v. Delaware, L. & W. R. R. Co., 172 App. Div. 46 ; Giannavola v. General Ry. Signal Co., 244 App. Div. 65 ; 170 A. L. R. 383, 384.) To construe section 50-e of the General Municipal Law as depriving plaintiff of this right would cast grave doubt upon its constitutionality (N. Y. Const., art. I, § 2).

For the foregoing reasons, in addition to those set forth in the dissenting opinion in Matter of Martin v. School Bd. (Long Beach) (supra), I am of the opinion that the complaint, as a matter of pleading, sets forth a cause of action.

The judgment and order appealed from should be reversed and the motion denied, with costs.