285 A.D. 517 | N.Y. App. Div. | 1955
Lead Opinion
On January 1, 1953, plaintiff’s intestate received injuries from which he died on January 8, 1953. He left surviving his widow and ten minor children. On May 15, 1953, letters of administration were issued to the widow who as such administratrix served a notice of claim upon the City of Watertown on August 11,1953. This action to recover damages for the alleged wrongful death of the intestate was com
The defendant City of Watertown moved at Special Term to dismiss the complaint as against it, on the ground that the complaint failed to state a cause of action, and for summary judgment under rule 113 of the Buies of Civil Practice. The motion as to both grounds was denied and the city appeals from the order. The appeal requires a determination as to whether the notice of claim against the defendant city was given “ within ninety days after the claim arises ” as required by section 50-e of the General Municipal Law. The city contends that requirement for the giving of the notice of claim should be construed to mean ninety days after death, while the plaintiff contends that the statute contemplates a notice of claim within ninety days after the issuance of letters of administration.
Section 50-e of the General Municipal Law (L. 1945, ch. 694) was enacted upon the recommendation of the Judicial Council. The report of the Judicial Council pointed out that the time period for giving a notice of claim against municipal corporations varied in existing State-wide statutes and municipal charters and proposed that there should be uniformity throughout the State as to the time period for filing such claims (Ninth Annual Report of N. Y. Judicial Council, 1943, pp. 227-258; Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 265-296). Section 50-e of the General Municipal Law was thereafter enacted and now provides that where a notice of claim is required as a condition precedent to the commencement of an action against a public corporation the notice “ shall be given, within ninety days after the claim arises.”
The decisions in effect at the time of the enactment of section 50-e held that a cause of action for wrongful death accrued or arose upon the appointment of the executor or administrator, and that the time for serving a notice of claim began to run from the date of the appointment of such representative. (Barnes v. City of Brooklyn, 22 App. Div. 520; Crapo v. City of Syracuse, 183 N. Y. 395; Conway v. City of New York, 139 App. Div. 446, affd. 208 N. Y. 567; Boffe v. Consolidated Tel. & Elec. Subway Co., 171 App. Div. 392, affd. 226 N. Y. 654.)
The determination of this appeal depends entirely upon whether or not the Legislature by its enactment of section 50-e so changed the rule enunciated in the above-cited cases as to
“ When the legislature amends or considers afresh a statute it will be assumed to have knowledge of judicial decisions interpreting the statute as then existing and if it deals with it in a manner which does not rebut or overthrow the judicial interpretation it will be regarded as having legislated in the light of and as having accepted such interpretation.” (Orinoco Realty Co. v. Bandler, 233 N. Y. 24, 30, supra; see, also, Matter of Cole, 235 N. Y. 48, 53, supra.)
We are unable to discover any indication either in the language of the statute, its history, or the reports of the Judicial Council which recommended the law, that the Legislature intended to make any change in the starting point from which to compute the time for filing the required notice of claim in a wrongful death action. Had any such intent been present in the minds of the legislators it could have been easily and understandably expressed. If it should now be thought more desirable to compute time from the date of death rather than from the time of the appointment of a representative of the estate as heretofore, such a change is a matter of policy to be determined by the Legislature rather than by the courts under the guise of construction. (People v. Friedman, 302 N. Y. 75, 79.)
The question before us has been recently passed upon by the First Department in Joseph v. McVeigh (285 App. Div. 386). It was there held that the period for filing a notice of claim in a death case begins to run from the time of the appointment of an executor or administrator. We are in accord with that decision and with. the reasoning so clearly expressed in the opinion of Mr. Justice Callahan.
We have given careful consideration to the decision of the Court of Appeals in the recent case of Winbush v. City of Mount Vernon (306 N. Y. 327) and have concluded that the decision there is not an authority for the contention advanced by the appellant here. That case did not involve the question which we are called upon to decide here. The court there held, as we read the decision, that it was within the discretion of the Supreme Court to permit Mary Winbush who had served a notice of claim on the city individually and in her capacity as next of kin, to amend the notice of claim so as to recite the words “individually and as administratrix” after her name. It did not hold nor did it intend to suggest, as we read the
The order appealed from should, therefore, be affirmed, with $10 costs and disbursements.
Dissenting Opinion
(dissenting). I am unable to agree with the construction placed upon section 50-e of the General Municipal Law as expressed in the majority opinion. The purpose of the statute was to effect uniformity as to the period within which a notice of claim in a tort action against a public corporation should be given. The section is general in character. It applies to all tort cases without the mention of any particular action and without the exception of any. On its face, the apparent intention was that the limitation period for giving notice of claim was to be uniform whether the action was in negligence or for some other tort. Section 50-e has nothing to do with the time when a cause of action accrues nor with the period of limitation within which any tort action must be commenced. In an action for wrongful death by an executor or administrator, by section 130 of the Decedent Estate Law, the two-year period within which to commence the action begins upon the death of the decedent. Nothing is contained in said section which has any reference to the “ notice of claim ” which is the subject of section 50-e of the General Municipal Law.
I think that there is no inconsistency between section 50-e of the General Municipal Law and section 130 of the Decedent Estate Law. One relates to “ notice of claim ” and the other relates to “ cause of action ”. “ Notice of claim ” is not synonymous with “ cause of action ”. The apparent confusion arises from failure to distinguish between the two. It was held in Matter of Mulligan v. County of Westchester (272 App. Div. 927) that the claim did not arise, in an action for wrongful death, until the appointment of an administrator. That holding was based upon the decision in Boffe v. Consolidated Tel. & Elec. Subway Co. (171 App. Div. 392, affd. 226 N. Y. 654) which held only that an action under section 130 of the Decedent Estate Law could not be commenced until the appointment of an administrator. In the Boffe case, the defendant was not a public corporation and the question of notice of claim was not even involved nor mentioned.
I think that on the death of a decedent occasioned by wrongful act, a “ claim ” arises even though the action to enforce the claim may not be brought until an administrator or executor
It seems plain to me that by the enactment of section 50-e of the General Municipal Law, it was the intention of the Legislature to require a notice of claim within the ninety-day period in all tort actions. Had it been intended to make an exception, that could easily have been done. The Legislature distinguished between a “ notice of claim ” and a “ cause of action ”. The; distinction between a “ claimant ” and a “ plaintiff ” was recognized in Reynolds v. Village of Nyack (258 App. Div. 667) where the court in referring to the Village Law (§§ 341, 341-c) said (p. 668): “the Legislature has been careful to distinguish between a ‘ claim ’ and a ‘ cause of action ’ ”. In Matter of Russo v. Valentine (294 N". Y. 338) the Court of Appeals distinguished the Reynolds case but the dissenting opinion cited it on the point of “ a legislative' intent to draw a distinction between claims submitted in person to the property clerk and actions and proceedings brought through the medium of a civil process in a court of law.”
If that distinction is kept in mind, the provisions of section 50-e fall into the proper places. Subdivision 1 uses the phrase “ after the claim arises.” Subdivision 5 provides for the filing in certain instances “ within a reasonable time after the expiration of the time specified in subdivision one. ’ ’ (Emphasis mine.) Subdivision 5 also provides that application for leave to file late must be within a year “ after the happening of the event upon which the claim is based ”. That “ event ” in an action pursuant to section 130 of the Decedent Estate Law can only refer to the death of the decedent. A claim is not based upon the appointment of an administrator. The ‘ ‘ basis ’ ’ of the claim', is the wrongful death. So, I think that throughout section 50-e, it is clear that the claim arises on the date of death.
Care must be taken not to confuse “ notice of intention to commence an action” with “notice of claim”. It has been held prior to the enactment of section 50-e that a notice of intention to sue must be given by one in whom the right to sue resided. The Legislature specifically abolished‘ ‘ notice of intention to commence an action.” Former authorities as to that
The purpose of requiring a notice of claim is simply to put a public corporation on notice that it may be required to respond in damages. It should have reasonable opportunity to make a prompt investigation of the circumstances. Were it to be held that the notice of claim in a death action may be filed at any time within ninety days after the appointment of an executor or administrator, then the very purpose of the notice is nullified. On the last day of the two-year period within which to commence action, an administrator could be appointed, a notice of claim filed and an action commenced. In such case, instead of a ninety-day period, there would be a two-year period subsequent to death, during which the municipality might have no knowledge of claim at all and therefore no opportunity for investigation. I think the Legislature contemplated no such result.
All concur, except Kimball, J., who dissents and votes for reversal and granting the motion, in an opinion in which Van Duser, J., concurs. Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.
Order affirmed, with $10 costs and disbursements.