
    Renee R. Motyka, as Administratrix of the Estate of Michael Motyka, Deceased, Respondent, v. City of Oswego, Appellant.
   Vaughan, J.

(concurring). When this court decided Buduson v. Curtis (ante, p. 517) I did not participate in that decision. I disagree with the views stated by the majority holding in that case, and inherent in this case, for the' following reason^,1 -in additiori to 'those sfet1-forth in- the dissenting■ opinion. in the Budusori’adae:,!-,u ..... “‘-r 5

The learned Special Term, as -I see-it, confused the-question- of the: 'capacity to sue with the- capacity - to give' notice-1 of claim fox- wrongful- -death." 'It is because of this''confusion;1 'I 'believe;-'that-'-we‘-find- cases‘holding "-that time-’.-to serve notice of claim' iira death'-action' funs from-'the-time of the - kpp ointment of the administrator'-rather- than- from-1 the date-of death.--■ -Such1 confusion 'has, in my opinion, been1 removed “by'the- recént-ease of Winbush v. City of Mt. Vernon (306 N. Y. 327) The question' before the court:-in- ttikt-'cas'e -was, “ May a person qualified1 to: be, but not'-yet appointed,administratrix Validly file a wrongful death- claim/ that-person1 having;' been; -subsequently 'and -within the statutory ninety day time limit- for.'filing the’ notice, appointed-1 administratrix ? ” (P. 330.) ‘The*!eóurts-answered--the question-in the-'affirmative.-' In so doing, it specifically'held'that a person- other 'than- 'an ■ 'administratrix -could file the notice required by* section1 50-e of "the General Municipal1 Law-.' ’ Implicit in that holding was a finding-that :a death1 claim--existed as-of -the-'date of -‘death and prior to the appointment-of- an administratrix-" and* ’that one who -is-next of kin may file notice of cláím-for--the--Wrongful death: "While -no -one- except an administrator or executor • inay- -bring - -a-’ death" action, there- is 'no: reason, • in statute or in reason, why a person, Hvho is one of the* next Of kin - -to1 -be"- benefited by a death action, may not file -a -notice -of- claim,1 which -is not 'a* pleading ‘in a lawsuit, but merely a notice of1 ’injury- and intention to make1 claim-1 therefor. * * * it seems, in the absen'ee"of-any statutory-prohibition)1 that-those next of kin themselves should be permitted - to" -file1 a xiotice - of1 Claim,-' évén though *a suit on the claim cannot be brought until an ■ administrator’ has'been - appointed-.” (306 N. Y. 334-335.) The court, after distinguishing various - contrary; authorities, went on to say: “The present - claim,: hdweve'iy was preliminary -to' suit under section 130 of the Decedent Estate Law,- as to1 which it has been' specifically held that the time runs from death, and- we-1 have; also, section 50-e" itself, which requires filing of the claim within ninety" days1 after the "'claim--arises!(306 N. Y. 335-336.)

What could be clearer? The court first1 says1 a- claim1 fof1 Hvrongful-death• mriy be filed by the next of kin prior to the appointment' of !,an' ládministfatór:1 Tt follows that the claim must have been in existence af' the'time'thd hexfi-bf kin filed notice of claim. As the court points out, the claim was -preliminary -to1 suit xmder section 130 of the Decedent Estate Law'arid time'for filing-‘i-unS1 from death, and finally the court points out that section 50-e requires the*- filing -bf such a claim within ninety days “after the claim-arise^’.'-'" -1- ' ■¡■|! ’

The learned Special Term in the case xmder review -refused1-to-' follow1; 'the decision in the Winbush case (supra), but adopted what it considered to be the holding of the Court of Appeals in White v. City of New York (302 N. Y. 726). I think the court misinterpreted the holding in that case. The action was one for wrongful death. It reached the Court of Appeal's"from an'order of the Appellate Division, Second Department, which reversed kn order of the Special Term made pursuant to section 50-e of the General ’ Municipal Law permitting the plaintiff administrator to serve a notice of claim' later’ than sixty days (now ninety days) from his appointment as administrator arid' directed service to be deemed nunc pro tunc as of within sixty days!' 'The'Appellate Division’s, reversal was predicated upon the ground that the plaintiff was not in the category of persons to whom such relief could be granted. -The' Court of Appeals affirmed the order of the Appellate Division. The only prbblenl- posed by - thq, a-pppa), - ,was¡ whether the, administrator of - an > infant; killed - through, , the, alleged .negligence; of;¡the: defendant, city, has the.’right ,tp, ,,claim!the^ppiyilege,t of late filing of the, notice; required by .section 50-e of .the General Municipal Law. The decision of the Court of Appeals was limited to that question and was adverse to the administrator. 1

On .further observation, section 50-e, was “enacted with, .a. view to-¡enabling municipalities, to;make early-investigations, of .claims, and to .marshal- evidence i promptly.af,a-time .when it-;is possible, to¡ do so_:_(Matter of Brown v. Board of Trustees of Town of Hamptonburg School Dist., 303 N. Y. 484, 490.)

A further purpose for enactment of the statute was -to establish; a uniform time, of.ninety ’days for, service of. tort claims against.all municipalities, ¡.throughout, theState-¡except- .in, eases, of. incompetents. and infants where ■ the ■ court, upon proper-cause shown, may extend -the. time (Tenth Annual Report of N. Y. Judicial Council, 1944, 267).

To adopt the,rule,,laid - down- by the.-Special Term'would.not .only .abort’ the.1-; purpose of ¡thestatut.ebut would. tend.to create chaos and,¡confusion, ’There would be a ninety-day limitation of time-for- filing; of ¡claims • in .personal, injury actions following the happening of an accident (except as noted in cases of incompetents and infants) while in death actions the time for filing claims would,.be-gnybody-’s ¡guess; if; .the time starts'to run.from the date- o£4he 'appointment of. an , administrator. '¡¡.Certainly - that- wa's not the - intent 'expressed by the,, Judicial, .Council.; in i its. recommendation; for. .a uniform time for.-service Of--, notice, of-claim .upon, municipalities throughout the - State.' tifo adopt,.the .reason-.; ingrof the ’ Special .Term would ’ destroy. the; purpose ’0$ uniformity ’and -section Sthe; wbuld-Serve no .useful, purpose, r?; ¡Í --i* N -;*i ’«.’i;--;- ’■.''•íb...-

However,-1 concur in- the . result; for; I-. feel■ - obligated1: to-,¡.dot eso,mü der,ithe’ ^ authority.of Buduson v. Curtis (ante, p. 517, supra)

All concur, Vaughan, J., in result-in an opinion;. Kimball and Van Duser, JJ., in the following .memorandum. We concur solely by reason of the prior decisión of the, court.,by which; we;are .bound:’ ¡.See: dissenting; opinion in\ Buduson v. Curtis (ante,. p.e.,521);., .Present McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

.Order affirmed, with>.-$10' ¡cpsts an,d.-dish,ursementsi[See.-post, p.>/1216.]ir;  