273 A.D. 152 | N.Y. App. Div. | 1947
Plaintiff, the public administrator, sues the defendant city on two causes of action, one for the wrongful death of one Dines, the other for conscious pain and suffering of Dines before his death, resulting from a fire and collapse of a building allegedly attributable to defendant’s negligence. The required notice of claim under section 50-e of the General Municipal Law was not given within sixty days after the happening of the accident or within sixty days after the appointment of plaintiff as administrator of the estate of Dines, but was given pursuant to leave granted by Special Term upon the application of plaintiff made approximately four months after his appointment.
The cause of action for conscious pain and suffering falls within the exception of a person being entitled to make a claim dying before the expiration of the time limited for service of the notice. There appears in this case, however, no reason why a longer period should be allowed for asserting that claim than for asserting the death claim.
The order appealed from should he reversed, with $20 costs and disbursements to the appellant and the motion denied.
Peck, P. J., Dore, Cohn and Callahan, JJ„, concur; Shientag, J., concurs in the result.
Order unanimously reversed, with $20 costs and disbursements to the appellant and the motion denied. Settle order on notice.