Summary
In Tilinsky v. City of New York (supra, decided in 1938, before the enactment of General Municipal Law, § 50-e) it was held that the dismissal of a five-year-old infant's action against the board of education, because of the failure to serve notice of intention to sue within the statutory period, should not be a dismissal on the merits, but the dismissal should be "without prejudice to his commencement of a new action against that defendant, after service upon the Board of Education of a notice of intention to sue it".
Summary of this case from Feldman v. City of New YorkOpinion
October 28, 1938.
Present — Hagarty, Davis, Johnston, Taylor and CLOSE, JJ.
The infant plaintiff sues the city of New York and the board of education to recover damages for personal injuries; his mother, for loss of services and expenses. The injuries were sustained when a gate attached to a fence inclosing the property of the board of education and abutting the sidewalk fell on the infant while he was walking on the sidewalk. The court dismissed the complaint on the merits against both defendants. Judgment dismissing on the merits the mother's and infant's causes of action modified by striking out the provision as to the infant's cause of action and by inserting a provision that as to his cause of action against defendant the board of education of the city of New York the dismissal is "without prejudice to his commencement of a new action against that defendant, after service upon the Board of Education of a notice of intention to sue it," and as so modified the judgment is unanimously affirmed, without costs. Notice of intention to sue was served on the comptroller and the corporation counsel of the city of New York but not upon the board of education, as required by statute. (Laws of 1933, chap. 484.) Such failure is fatal to the infant's present cause of action against the board of education. ( Winter v. City of Niagara Falls, 190 N.Y. 198.) The failure of a five-year old infant to serve the notice of intention to sue the board of education within six months after the cause of action accrued does not bar the infant's cause of action. ( Murphy v. Village of Fort Edward, 213 N.Y. 397.) The provision of the statute that the action must be commenced within one year after the cause of action accrues is not in the nature of a Statute of Limitations, which runs during infancy. ( Russo v. City of New York, 258 N.Y. 344.)