Opinion
April 28, 1941.
Action to recover for property damage, brought by the plaintiffs, as owners of an automobile which was involved in a collision with an automobile owned by the county of Westchester and operated by the individual defendant, a county employee. Order of the County Court of Westchester County granting plaintiffs' motion to strike out three affirmative defenses in defendant's amended answer reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The plaintiffs are entitled to maintain a common-law action against the defendant municipal employee; they, however, must comply with the statutory conditions regulating the maintenance of such an action. (Laws of 1931, chap. 561, as amd. by Laws of 1940, chap. 97.) The defenses are predicated on a failure to comply with the statute and, therefore, are valid. It is within legislative competence to attach a condition to the maintenance of a common-law action as well as a statutory action. ( Reining v. City of Buffalo, 102 N.Y. 308.) The statutory conditions apply alike to actions against the municipal corporation as well as actions against a "servant or employee thereof." (See Kaplan v. City of Poughkeepsie, 279 N.Y. 153.) Carswell, Johnston, Adel and Taylor, JJ., concur; Lazansky, P.J., concurs in result.