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Buduson v. Curtis

Supreme Court of New York, Appellate Division

March 23, 1955

Buduson
v.
Curtis

APPEAL from an order of the Supreme Court at Special Term (KINGSLEY, J.), entered July 26, 1954, in Jefferson County, which denied a motion by the defendant-appellant for a dismissal of the complaint and for summary judgment.

COUNSEL

Kenneth W. Brett, Corporation Counsel, for appellant.

Lawrence Conboy for respondent.

MCCURN, P. J.

On January 1, 1953, plaintiff's intestate received injuries from which he died on January 8, 1953. He left surviving his widow and ten minor children. On May 15, 1953, letters of administration were issued to the widow who as such administratrix served a notice of claim upon the City of Watertown on August 11, 1953. This action to recover damages for the alleged wrongful death of the intestate was commenced

Page 518

on December 24, 1953. The complaint alleged among other things that plaintiff had in compliance with section 50-e of the General Municipal Law, made due service of a notice of claim on the City of Watertown within ninety days after the claim arose.

The defendant City of Watertown moved at Special Term to dismiss the complaint as against it, on the ground that the complaint failed to state a cause of action, and for summary judgment under rule 113 of the Rules of Civil Practice. The motion as to both grounds was denied and the city appeals from the order. The appeal requires a determination as to whether the notice of claim against the defendant city was given 'within ninety days after the claim arises' as required by section 50-e of the General Municipal Law. The city contends that requirement for the giving of the notice of claim should be construed to mean ninety days after death, while the plaintiff contends that the statute contemplates a notice of claim within ninety days after the issuance of letters of administration.

Section 50-e of the General Municipal Law (L. 1945, ch. 694) was enacted upon the recommendation of the Judicial Council. The report of the Judicial Council pointed out that the time period for giving a notice of claim against municipal corporations varied in existing State-wide statutes and municipal charters and proposed that there should be uniformity throughout the State as to the time period for filing such claims (Ninth Annual Report of N.Y. Judicial Council, 1943, pp. 227-258; Tenth Annual Report of N.Y. Judicial Council, 1944, pp. 265-296). Section 50-e of the General Municipal Law was thereafter enacted and now provides that where a notice of claim is required as a condition precedent to the commencement of an action against a public corporation the notice 'shall be given within ninety days after the claim arises.'

The decisions in effect at the time of the enactment of section 50-e held that a cause of action for wrongful death accrued or arose on the appointment of the executor or administrator, and that the time for serving a notice of claim began to run from the date of the appointment of such representative. (Barnes v. City of Brooklyn, 22 App.Div. 520; Crapo v. City of Syracuse, 183 N.Y. 395; Conway v. City of New York, 139 App.Div. 446, affd. 208 N.Y. 567; Boffe v. Consolidated Tel. & Elec. Subway Co., 171 App.Div. 392, affd. 226 N.Y. 654.)

The determination of this appeal depends entirely upon whether or not the Legislature by its enactment of section 50-e so changed the rule enunciated in the above-cited cases as to

Page 519

require that the time period for filing a notice of claim as a condition precedent to an action for wrongful death should thereafter be computed from the date of death. Various State-wide statutes providing for notice of claims in tort actions, in effect at the time section 50-e was enacted, limited the time period by various expressions such as 'ninety days after the injury complained of' (Town Law, § 67, as amd. by L. 1941, ch. 30); 'three months after the happening of the accident or injury' (Second Class Cities Law, § 244, as amd. by L. 1940, ch. 406); 'within thirty days after the cause of action shall have accrued' (Village Law, § 341, as amd. by L. 1940, ch. 405). There are several others but these will serve for illustrative purposes. The Legislature corrected the variance in the time periods by establishing a uniform time period of sixty days (now ninety days). The reports of the Judicial Council called specific attention to the confusion arising from the varying time periods existing in the State-wide statutes and city charters throughout the State. It made no criticism, however, nor indeed any particular mention of the established starting point from which to compute the time period. Its recommendation was that the time period be uniformly fixed as 'ninety days after the claim arises.' From a literal viewpoint at least the words 'after the claim arises' do not appear to be repugnant to the expressions used to designate the starting time in the existing statutes. On the contrary the newly adopted language would seem to be consistent with and inclusive of the variously expressed designations of the starting point appearing in the then present statutes. The new language appears so similar in meaning as to afford a presumption that the Legislature intended that it should be construed as the language in the former law had so long been construed. (See Pouch v. Prudential Ins. Co., 204 N.Y. 281, 288.)It must be assumed in any event that the Legislature was cognizant of the existing statutes and the construction placed upon them by the courts. (Matter of Cole, 235 N.Y. 48; Orinoco Realty Co. v. Bandler, 233 N.Y. 24.) It must ...


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