
    Willimay Chavers, an Infant, by Elleana Chavers, Her Guardian ad Litem, Appellant, v. City of Mount Vernon, Respondent.
    Submitted May 15, 1950;
    decided July 11, 1950.
    
      
      Garry J. Fury and Ray W. Aylesworth for appellant.
    
      James M. Gilleran and John J. O’Connor for respondent.
   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.

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, 203; 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.  