
    Celia Murphy, an Infant, by Mary Ann Murphy, Her Guardian ad Litem, Appellant, v. Village of Fort Edward, Respondent.
    Third Department,
    November 26, 1913.
    Village — negligence—failure of child to file notice required by section 341 of the Village Law — failure of parents to file notice.
    A child five years of age is not precluded from bringing an action against a village for personal injuries by reason of a failure to file within the required time the notice specified in section 341 of the Village Law.
    A child of that age is not prejudiced by the failure of its father or mother to file the notice.
    Kellogg and Lyon, JJ., dissented, with memorandum.
    Reargument of an appeal by the plaintiff, Celia Murphy, from an order of the Supreme Court, made at the Washington Trial Term and entered in the office of the clerk of the county of Washington on the 8th day of February, 1913, granting defendant’s motion for a dismissal of the complaint made at the close of the plaintiff’s case and renewed at the close of the whole case; also from the judgment entered in said clerk’s office on the 15th day of February, 1913, dismissing the complaint upon the merits pursuant to said order, and also from an order entered in said clerk’s office on the 14th day of March, 1913, setting aside the verdict of a jury in plaintiff’s favor for $1,000, which verdict was rendered pending the determination of the motion to dismiss, the decision of which had been reserved by the court.
    
      Rogers & Sawyer [John E. Sawyer of counsel], for the appellant.
    
      Wyman S. Bascom, for the respondent.
   Per Curiam:

This case upon appeal was argued and decided, the report of which is contained in 158 Appellate Division, 342.

Upon reargument the majority of the court is of opinion that it should be held by this court that a child five years of age is not precluded from bringing an action against a village ■by failure to file, within the time prescribed by law, the notice specified in section 341 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64); and, further, that a child of that age should not be prejudiced by the failure of its father or mother to file the same.

With these views it follows that the judgment dismissing’ the complaint, and also the order setting aside the verdict for the plaintiff, should be reversed, and the verdict for the plaintiff for $1,000 should' be reinstated, and judgment directed thereupon.

All concurred, except Kellogg,' J., dissenting in memorandum, in which Lyon, J., concurred.

Kellogg, J. (dissenting):

The right to maintain an action against a municipal corporation for negligence may be given by the Legislature upon such terms as to it seems best. (Scott v. Village of Saratoga Springs, 199 N. Y. 178.) The filing of the notice is a condition precedent to the right of maintaining an action. (Winter v. City of Niagara Falls, 190 N. Y. 198; Reining v. City of Buffalo, 102 id. 308; Carson v. Village of Dresden, 202 id. 414, 418.) Infancy is no excuse for failure to file the notice, unless the infant is helpless and had no one to protect her interests. (Winter v. City of Niagara Falls, supra.) At the time of the accident there was-grave doubt whether the liability for the defect in the bridge rested upon the railroad company or the municipal authorities. The mother of the infant was- active in her behalf and employed able counsel to assist her. About eight months after the accident the trial court decided that the railroad company was not liable to the plaintiff, and in May, 1912, we affirmed that decision. (Murphy v. D. & H. Co., 151 App. Div. 351.) On August 5, 1912, the mother filed a notice of the injury. This was about two years after the accident, about a year after the decision of the trial court that the railroad company was not liable, and about sixty-five days after the decision of this court affirming that decision. The infant’s interests were in competent hands and apparently had every attention that they would have received if she had been of more mature years.. Under the circumstances the notice was not filed as required by law.

Lyon, J., concurred.

Judgment and orders reversed, and verdict for the plaintiff for $1,000 reinstated, and judgment directed thereupon.  