248 A.D. 913 | N.Y. App. Div. | 1936
In an action brought by plaintiffs, husband and wife, to recover damages (a) for personal injuries and (b) for loss of services, in which each plaintiff alleged a cause of action based on negligence and a second cause of action based on alleged nuisance, created, however, by the alleged negligence of the defendant, order denying defendant’s motion to dismiss each cause of action alleged in the amended complaint, based on alleged nuisance, reversed on the law, with ten dollars costs and disbursements, and motion to dismiss each of said causes of action granted, with ten dollars costs, with leave to plaintiffs, if so advised, to plead over within ten days from the entry of the order hereon. We are of opinion that section 341-b of the Village Law, even when read in the light of section 380 thereof, is without application to the defendant herein, incorporated under a special charter (Laws of 1910, chap. 667, as amd.); however, section 204 of said special charter, which requires filing of a notice of claim as a prerequisite to the maintenance of an action against the village for damages for a personal injury alleged to have been sustained by reason of its negligence, applies to each of said causes of action for the reason that the nuisance alleged was created by the negligence of the village. (McFarlane v. City of Niagara Fails, 247 N. Y. 340, 342; Smith v. Village of Victor, 134 Misc. 888.) Therefore, each of said alleged causes fails to state facts sufficient to constitute a cause of action by reason of its omission to allege the filing of the said prerequisite notice of claim. Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.