Opinion
March 19, 1941.
Appeal from Supreme Court, Rensselaer County.
Judgment affirmed, with costs.
Hill, P.J., Crapser, Bliss and Foster, JJ., concur; Heffernan, J., dissents, in a memorandum.
I dissent and vote to reverse the judgment and order under review. In my opinion the complaint states a good cause of action.
Section 50-c Gen. Mun. of the General Municipal Law was not intended to and does not exempt a tort feasor, although engaged in a governmental function, from his common-law liability for negligence. This statute is remedial and its evident purpose is to provide an injured person with a remedy not granted to him by the common law. The statutes being in derogation of the common law must be strictly construed as to defendant.
In the case before us plaintiff is not seeking to hold the municipality and hence compliance by him with the provisions of the statute is not required.
The case of Derlicka v. Leo ( 281 N.Y. 266), cited to sustain the view of the majority, has no application to the facts in our case. The Derlicka case arose under section 50-d Gen. Mun. of the General Municipal Law, a statute entirely different in its phraseology from that which we are construing. Section 50-d imposes upon a municipal corporation ultimate liability for damages for personal injuries sustained by reason of the malpractice of a physician or dentist while rendering medical or dental services, gratuitiously, to a person in a public institution maintained by the municipality. It is to be noted that the statute comprehends actions against either the municipal corporation or a physician or a dentist.
In the case at bar plaintiff is seeking relief solely against the negligent police officer. If ultimately successful he must look only to that official for the satisfaction of his claim. The city is not liable over to plaintiff because of his failure to serve the notices required by section 50-c of the law in question. ( Kosiba v. City of Syracuse, 260 App. Div. 557.)