New York Court of Appeals, 1950

Chavers v. City of Mount Vernon

New York Court of Appeals · Decided July 11, 1950 · Froessel

301 N.Y. 634; 93 N.E.2d 918; 1950 N.Y. LEXIS 955

Cases that cite this one

11 later published cases cite this decision.

Cohen v. City of New York (Appellate Division of the Supreme Court of New York 1963)
Brown v. Board of Trustees (N.Y. 1952)
Anderson v. County of Nassau (Appellate Division of the Supreme Court of New York 1969)
Corso v. City of New York (New York Supreme Court 1964)
Debes v. Monroe County Water Authority (Appellate Division of the Supreme Court of New York 1962)
Chikara v. City of New York (New York Supreme Court 1959)
In re Banas (New York Supreme Court 1953)
Ingber v. Board of Education of Central School District No. 1 (Appellate Division of the Supreme Court of New York 1951)
Priceman v. City of New York (Appellate Terms of the Supreme Court of New York 1951)
Moore v. City of New York (N.Y. 1951)
Martin v. School Board of Union Free District No. 28 (N.Y. 1950)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Dissenting Opinion

Froessel, J.

(dissenting). A somewhat different situation is presented here than in Matter of Martin v. School Bd. (Long Beach) (301 N. Y. 233), decided herewith. Thére we dealt with the procedure established by section 50-e of the General Municipal Law, whereby the court on application is given a limited discretion with respect to the serving of notices of claim. Here the complaint was dismissed on motion, and without a trial of the uncontroverted issue of impossibility of performance, alleged in paragraph eleventh of the complaint.

The requirement with respect to the serving of a notice of claim is “ an essential part of a complainant’s cause of action ”, and compliance must be pleaded like any other condition precedent, unless there is pleaded “ an excuse for delay in performance ”, caused by “ the inability of the injured person to comply.” (Winter v. City of Niagara Falls, 190 N. Y. 198, *637203; Walden v. City of Jamestown, 178 N. Y. 213, 217; Whiteside v. North Amer. Accident Ins. Co., 200 N. Y. 320, 323.) Here there is such a plea in a common-law action, and thus an issue of fact is presented on which plaintiff is entitled to a trial by jury or by a trial court if the jury is waived. (Russo v. City of New York, 258 N. Y. 344, 348; Forsyth v. City of Oswego, 191 N. Y. 441, 444; Smith v. Western Pacific Ry. Co., 203 N. Y. 499; McGurty v. Delaware, L. & W. R. R. Co., 172 App. Div. 46; Giannavola v. General Ry. Signal Co., 244 App. Div. 65; 170 A. L. R. 383, 384.) To construe section 50-e of the General Municipal Law as depriving plaintiff of this right would cast grave doubt upon its constitutionality (N. Y. Const., art. I, § 2).

For the foregoing reasons, in addition to those set forth in the dissenting opinion in Matter of Martin v. School Bd. (Long Beach) (supra), I am of the opinion that the complaint, as a matter of pleading, sets forth a cause of action.

The judgment and order appealed from should be reversed and the motion denied, with costs.

Opinion of the Court

Judgment affirmed, without costs, upon the authority of Matter of Martin v. School Bd. (Long Beach) (301 N. Y. 233), decided herewith.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, JJ. Froessel, J., dissents in the following opinion in which Conway, J., concurs.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.