Krauss v. Layman

The action was instituted by the plaintiff for the recovery of damages for injuries which arose out of an accident occurring in the city of Rensselaer on the 29th day of July, 1938, while the plaintiff was crossing a street on which the defendant was operating an automobile.

The complaint alleges that at all the times hereinafter mentioned the defendant was driving, managing and operating an automobile which was the property of the municipality of the city of Rensselaer, N. Y., as a police officer of said city. The action was instituted solely against the operator of the car. No claim was ever filed or action instituted against the city of Rensselaer.

At the opening of the trial counsel for the defendant moved to dismiss the complaint upon the ground that it did not allege compliance with the provisions of section 50-c of the General Municipal Law. The trial court granted the motion to dismiss on the authority of the provisions of sections 50-a, 50-b and 50-c of the General Municipal Law upon the authority of Derlicka v. Leo (281 N. Y. 266).

The plaintiff cannot maintain his action under his present complaint without having complied with the provisions of the General Municipal Law. ( Kosiba v. City of Syracuse, 260 App. Div. 557.)

The judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs.

Hill, P. J., Crapser, Bliss and Poster, JJ., concur; Heffernan, J., dissents, in a memorandum.