Opinion
286 A.D. 104 142 N.Y.S.2d 465 Achilles S. O'HARA, Appellant, v. SEARS ROEBUCK AND CO., and others, Defendants, Elmer G. Zimmerman and John D. Hanrahan, Respondents. Supreme Court of New York, Fourth Department June 9, 1955.
Argued May 17, 1955.
Arthur E. Schulgasser and Israel Rumizen, Buffalo (Arthur E. Schulgasser, Buffalo, of counsel), for appellant.
William B. Lawless, Jr., Corp. Counsel, Buffalo, Daniel J. Lucitt, Buffalo, of counsel, for respondents.
Before McCURN, P. J., and KIMBALL, PIPER, WHEELER and VAN DUSER, JJ.
PIPER, Justice.
Plaintiff-appellant brought this action for false arrest and malicious prosecution against defendants-respondents Elmer G. Zimmerman and John D. Hanrahan who are police officers of the City of Buffalo. The City was not made a party to the action. The complaint had been dismissed upon the ground that no notice of claim was filed similar to that required by § 50-e of the General Municipal Law. If the action was against the City of Buffalo, such a notice would have been required under § 50-e of the General Municipal Law. Such notice would be served only upon the municipality and not upon the employee. Sandak v. Tuxedo Union School District No. 3, 1954, 308 N.Y. 226, 124 N.E.2d 295. Further, if the action were brought pursuant to §§ 50-b or 50-c of the General Municipal Law, the action could not be maintained either against the municipality or appointee unless notice of claim was filed in accordance with § 50-e of the General Municipal Law. This is so because of the express statutory requirement in $ 50-c. Kosiba v. City of Syracuse, 287 N.Y. 283, 39 N.E.2d 240; Gwydir v. Cowdell, 291 N.Y. 777, 53 N.E.2d 242; Feisthamel v. Roczen, 273 A.D. 937, 78 N.Y.S.2d 21; Krauss v. Layman, 261 A.D. 1026, 26 N.Y.S.2d 32. Such notice would be served only upon the municipality (Sandak v. Tuxedo Union School District, No. 3, supra). However, §§ 50-b and 50-c deal with actions involving negligent operation of vehicles and facilities of transportation. They do not relate to actions for false arrest or malicious prosecution. The latter actions are brought under the common law and there is no statutory provision whereby the municipality must save harmless or indemnify a policeman from such actions, as is the case with respect to actions encompassed within § 50-c. Thus, there is no necessity for service of notice upon the municipality as a condition precedent for an action against the police officer for false arrest or malicious prosecution, where the municipality is not made a party. No statutory provision requiring such notice in such circumstances has been pointed to and we have found none.
The order appealed from should be reversed and the motion of defendants-respondents Elmer G. Zimmerman and John D. Hanrahan to dismiss the complaint denied.
Order reversed on the law with ten dollars costs and disbursements and motion denied with ten dollars costs.
All concur.