Opinion
April 2, 1964
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Noonan and Del Vecchio, JJ.
Judgment and order and judgment of City Court of Buffalo unanimously reversed on the law, without costs of this appeal to either party, and complaint dismissed, without costs. Memorandum: Concededly, the recovery in this action is based upon the negligent operation of a municipally owned vehicle by an employee of the City of Buffalo, who, at the time of the accident, was acting in the performance of his duties and within the scope of his employment. Although the City of Buffalo was not made a party to the action, it was also conceded that if sued it would be responsible to plaintiff. Section 50-b Gen. Mun. of the General Municipal Law imposes upon the City of Buffalo ultimate liability for any recovery against this defendant; consequently service of a notice of claim upon the city as required by section 50-e Gen. Mun. of the General Municipal Law is a condition precedent to the prosecution and maintenance of this action. Since no such notice was served the complaint must be dismissed. (General Municipal Law § 50-c; Van Tassell v. Hill, 285 App. Div. 584; Feisthamel v. Roczen, 273 App. Div. 937.)