285 A.D. 584 | N.Y. App. Div. | 1955
This is an appeal from an order of the Special Term granting a motion for summary judgment dismissing plaintiff’s complaint pursuant to rule 113 of the Rules of Civil Practice and section 476 of the Civil Practice Act.
The action is brought to recover property damage to plaintiff’s trailer allegedly caused by the negligence of the defendant. The defendant at the time was in the course of his employment
Section 50-b by its terms applies to ‘ ‘ Every county, city, town, village and other subdivision of government ”. Prior to 1941, the word “ county ” and the words “ and other subdivision of government’’ were not a part of this section. They were added by chapter 852 of the Laws of 1941. A school district is a civil division of the State. (Herman v. Board of Educ., 234 N. Y. 196, 202 [1922].) It is likewise known as “ governmental subdivisions of the State ”. (See Village of Kenmore v. County of Erie, 252 N. Y. 437, 442 [1930].) A school district is also a municipal corporation within the purview of the General Corporation Law (see General Corporation Law, § 3). Notwithstanding the limited definition of a municipal corporation as contained in section 2 of the General Municipal Law, we think that when the Legislature added the words “ and other subdivision of government ” to section 50-b in 1941, it intended thereby to include a school district. Sections 50-a, 50-b and 50-c of the General Municipal Law when read together lend strength to that view. These sections evidence a legislative intent to eliminate the defense of governmental function to all actions by a person injured or damaged as a result of the negligent operation of a vehicle owned by any municipality or subdivision of government when, operated in the performance of a governmental function, and in such cases to provide for indemnification of the negligent employee so engaged in the performance of a governmental function within the scope of his employment.
The appellant further contends that there is no sufficient showing upon this record that defendant was ‘ ‘ duly appointed ’ ’ to the position of school bus driver. The records of the school district show that in 1942, the defendant was appointed to the position upon the unanimous vote of the board of education and has served in that position and received the salary therefor from that time up to and including the happening of the accident in 1947. The school superintendent makes an affidavit that he had knowledge of and approved such employment. (See former section 110-d now section 3624 of the Education Law.) The
We conclude therefore that a notice of claim as prescribed by section 50-e is a condition precedent to the prosecution and maintenance of the action, and that since no such notice was served the complaint was properly dismissed.
The order should be affirmed.
All concur. Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.
Order affirmed, with $10 costs and disbursements.