
    In the Matter of the Application of Nick Assimenios, Respondent, against City of New York, Appellant.
   Respondent was injured while working as a painter on the roadbed of a city-owned railroad, and it is claimed that the injuries were caused by the negligence of the city’s flagmen. Respondent did not serve a notice of claim within sixty days after the claim arose, as required by section 50-e of the General Municipal Law (L. 1945, ch. 694, § 1). He was in and out of hospitals until about eighteen days after the accident, and thereafter remained at home except for visits to his doctor and to his attorney. This application for leave to serve the notice after the expiration of the sixty-day period was made more than five months after the accident, and the application was granted. Order reversed on the law and the facts, without costs, and the motion denied, without costs. There is evidence that respondent suffered a dislocated shoulder blade and injuries to his chest. And testimony was given at the hearing herein that he suffered a brain concussion. There is no showing that respondent was so incapacitated, within the sixty-day period following the accident, that he was unable to serve a notice of claim sworn to by him or by someone on his behalf. Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.  