306 N.Y. 327 | NY | 1954
To pass on the validity, under section 50-e of the General Municipal Law, of a notice of claim filed against the City of Mt. Vernon, we must answer this question: may a person qualified to be, but not yet appointed, administratrix validly file' a wrongful death claim, that person having been, subsequently and within the statutory ninety-day time limit for filing the notice, appointed administratrix? The notice of claim which is here under attack was filed by appellant Mary Winbush, who was, and who described herself in the paper as, one of the next of kin of each of three deceased persons. The claim was made because of the deaths of those three persons: appellant’s sister Viola Winbush, an adult, and appellant’s two infant nephews, James and Wilson Winbush, all three having been burned to death in a fire on the night of January 24-25,1949, in a building owned and operated by the Mt. Vernon New York Housing Authority. The theory of the claim was that the fire was caused by the negligence of the City of Mt. Vernon and/or the Mt. Vernon Housing Authority. However, the claim, and the later-brought suit which has been here dismissed, were against the City of Mt. Vernon, only. The notice of claim was filed with the city on March 3,1949, and so there is no question of timeliness, within the ninety-day time limit of section 50-e (supra) for such filing. The difficulty is that plaintiff-appellant Mary Win-bush was not yet, at the time of such filing, administratrix of the estates of any of the three deceased persons. In fact, at the time the notice was filed, the Public Administrator of Westchester County had already been appointed administrator of the estates of the two infants, James and Wilson Winbush. Plaintiff-appellant Mary Winbush was, on March 29, 1949, still within the ninety days provided by section 50-e (supra) for the filing of a claim, appointed administratrix of the estate of her sister, Viola Winbush, the adult who was burned to death in the fire. Section 130 of the Decedent Estate Law permits a suit for wrongful death to be brought by an executor or adminis
Mary Winbush, as administratrix of the estate of her sister Viola, after her appointment as such, and the Public Administrator, as. administrator of the estates of the two deceased infants, brought this present suit against the City of Mt. Vernon and the Housing Authority, but the city only has been served. The city moved, in August, 1952, to dismiss the wrongful death counts in the complaint, on the ground that they failed to state any causes of action, since it appeared from the complaint and the bill of particulars that, at the time this notice of claim was filed, plaintiff-appellant Mary Winbush had not yet been appointed administratrix of the estate of her sister, and, also, that at the time of such filing, someone other than Mary Win-bush, to wit, the Public Administrator, was already acting as the administrator of the estates of the two boys (there is in the complaint a separate cause of action for Mary Winbush’s own injuries but that was not attacked and is not relevant here). As against that motion by the city, Mary Winbush, as administratrix of her sister, and the Public Administrator for the two infants, moved to amend the notice of claim previously filed, so as to add, after Mary Winbush’s name in that claim, the words “ both individually and as administratrix of the Goods, Chattels, and Credits of Viola Winbush, Deceased ”, and further to amend that notice of claim by permitting the Public Administrator to join in the claim previously filed by Mary Winbush. The statutory basis relied on for this cross motion for amendment is subdivision 6 of section 50-e of the General Municipal Law, which is in full as follows: “6. At or before the trial of an action or the hearing upon a special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. Application for such relief if made before trial, shall be by motion, on affidavits.”
The city appealed to the Appellate Division, Second Department, which, by a divided court, affirmed so much of the lower court order as amended the notice of claim by putting in the Public Administrator’s name. The Appellate Division, however, struck out so much of the lower court order as permitted the claim to be amended by adding to plaintiff Mary Winbush’s name the additional language “ individually and as administratrix ”, etc. In other words, the Appellate Division let the claim stand as to the Public Administrator representing the estates of the two infants, but struck it down as to plaintiff Mary Winbush, administratrix of the deceased adult. The majority in the Appellate Division wrote a brief memo which, citing Crapo v. City of Syracuse (183 N. Y. 395) and Matter of Mulligan v. County of Westchester (272 App. Div. 927), later to be discussed herein, said that the notice of claim filed by Mary Winbush was a nullity insofar as it attempted to cover the death claim of Viola Win-bush, since, at the time of its filing, there was no administratrix of Viola Winbush. The dissenting Justices in the Appellate Division thought that, while only an administrator or executor can bring a wrongful death action, anyone, whether technically authorized or not, can validly file a notice of claim (citing Matter of Figueroa v. City of New York, 279 App. Div. 771), and that, in permitting the amendment in both its phases, Special Term did not abuse its discretion (citing Matter of Charlemagne v. City of New York, 277 App. Div. 689, affd. 302 N. Y. 871). Since the majority of the Appellate Division held that the complaint should be dismissed as to Mary Winbush, purporting to sue individually and as administratrix of Viola, a judgment was entered dismissing that cause of action. She appealed here from so much
This appeal differs from a number of others which we have heard, as to notices of claims against municipal corporations, since here it is undisputed that the notice of claim was filed in time and on the proper city officials, and that it contained full particulars as to the time, place and details of the occurrence, the specifications of the city’s alleged negligence and the amount of damages that would be demanded therefor. The primary purpose of section 50-e (supra), as often stated by the courts, is to give to a municipality prompt notice of such claims, so that investigation may be made before it is too late for investigation to be efficient (see Justice Shientag’s opinion for the Appellate Division in the Charlemagne case, 277 App. Div. 689, supra, which we affirmed, and see, also, Teresta v. City of New York, 304 N. Y. 440, 443). We have been very strict in some of the decisions such as Matter of Martin v. School Bd. (Long Beach) (301 N. Y. 233), but the errors in those cases were as to the time of service, and we were forced by the very language of the statute to hold that the time provisions contained in section 50-e (supra) are mandatory and beyond the reach of the courts. However, there is in the above-quoted subdivision 6 of the section (supra) the broadest kind of provision giving the courts discretion, in the absence of prejudice, to correct, supply or disregard a good faith mistake, omission, irregularity or defect “ not pertaining to the manner or time of service ”. Subdivision 6 makes it plain that the Legislature, to carry out the prime purpose of section 50-e, insists on a precise time limit for claims, and precise compliance with the requirements as to what officers are to be served, but leaves it to the discretion of the courts to correct any other kind of mistake or defect in such a paper. That explains the Charlemagne (supra). There, a wife had been injured and separate claims had been prepared for and signed, one by the wife for her injuries and the other by the husband for his loss of service, etc., but, by mistake, the husband’s claim only was filed,
While no one except an administrator or executor may bring a death action, there is no reason, in statute or in reason, why a person, who is one of the next of kin to be benefited by a death action, may not file a notice of claim, which is not a pleading in a lawsuit, but merely a notice of injury and intention to make claim therefor. Quite pertinent here, although not completely in point, is Matter of Figueroa v. City of New York (279 App. Div. 771, 2d dept., supra) which was cited with approval by this court in Teresta v. City of New York (supra, p. 443). Figueroa was an incompetent at the time the claim was filed, with no committee yet appointed, but a claim filed on his behalf by a friend was upheld, the holding being that the friend’s action might later be adopted by a committee subsequently legally authorized. No reason appears why that concept may not be applied in the present case, too.
Since a death action is brought for the benefit of the decedent’s next of kin (see Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367, 370; Central N. Y. Coach Lines v. Syracuse Herald Co., 277 N. Y. 110, 113; Stutz v. Guardian Cab Corp., 273 App. Div. 4, 7, and cases cited), since the administrator is “ a mere nominal party ” (Hamilton v. Erie R. R. Co., 219 N. Y. 343, 350, appeal dismissed 248 U. S. 369), and since any proceeds are not an asset of the estate but constitute a special fund, subject to a “ trust for the sole benefit of [those] statutory distributees ” (Central N. Y. Coach Lines v. Syracuse Herald Co., 277 N. Y. 110, 113, supra), it seems, in the absence of any statutory prohibition, that those next of kin themselves should be permitted to file a. notice of claim, even though a suit on
So much of the judgment as is appealed from should, therefore, be reversed, but, since the Appellate Division’s modification was stated to be on the law, we must presume that the court did not pass on any question of discretion (Civ. Prac. Act, §§ 602, 606; see Rugg v. State of New York, 303 N. Y. 361, 364).
The judgment, insofar as appealed from, should be reversed, without costs, and the case remitted to the Appellate Division for determination of the question of fact, that is, of discretion.
Lewis, Ch. J., Conway, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.
Judgment reversed, etc.