Crowley v. City of New York

189 Misc. 170 | N.Y. Sup. Ct. | 1947

Hofstadter, J.

Plaintiff seeks to amend a notice of claim so as to increase the amount sought -and to correct the period of time affecting the-amount assertedly due. Leave is also sought to serve an amended complaint to conform to the proposed amended notice of claim.

Plaintiff predicates his demand for relief upon subdivision 6 of section 50-e of the General Municipal Law. However, section 50-e applies only to tort actions, whereas plaintiff’s action is one in contract. Subdivision 1 of section 50-e specifically adverts to “ In any case founded upon tort * * *.” Moreover, a reading of subdivision 6 of section 50-e reveals that it applies to actions or proceedings “ to which the provisions of this section are applicable * *

The revision of practice concerning notices of claim resulted from a study made by the Judicial Council (Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 263-296). In that report, the Judicial Council recommended changes intended to apply to all actions. However, the bill introduced in the Legislature, which passed and became chapter 694 of the Laws of 1945, changed the Judicial Council recommendation so as to restrict the application thereof to tort actions. In its Eleventh Annual Report (1945, pp. 51-52) the Judicial Council commented on that change as follows: “ Third, the bill restricted notices of claim to torts. This limitation is satisfactory.”

Since plaintiff’s cause of action is not in tort, there is no statutory power to permit the relief prayed for. The motion is denied. Settle order.