(dissenting). The sole question involved is whether, in this-action, brought to recover damages against the County of Oneida for the death of plaintiff’s intestate alleged to have been caused by the defective condition of one of the county highways, compliance, as to notice, with the provisions of section 6 of the County Law must be shown. It is admitted that no notice was ever served upon either the chairman of the board of supervisors or the county court, as required by that section. Service was, however, made upon the clerk of the board of supervisors and the county attorney, the ones designated in section 6-a. There is no claim that the notice so served under section 6-a ever came into the possession of either the chairman of the board of supervisors or the county clerk within the time limited by section 6.
Prior to 1917 a county was not liable for injuries caused by its negligence in the care of its highways or bridges. (Markey v. County of Queens, 154 N. Y. 675.) In that year section 6 was adopted. Thereby, liability was imposed upon the county for injuries to person or property sustained because such highways or bridges were defective or dangerous through- the negligence of the county. The statute not only imposed liability which did not *553exist prior thereto, but, in addition, provided the means for the enforcement of it. It required that notice of any such claim must he served within three months after the happening of the accident or injury upon the county clerk or chairman of the hoard of supervisors, as a prerequisite to the bringing of an action to enforce it. The statute was both remedial and procedural in its nature. It has remained, in its essential particulars, ever since as a part of the County Law. In 1939 and in 1940 it was amended, but without change, insofar as the present question is concerned.
Section 6-a became a part of the County Law in 1931. In substance, it provided generally for the presentation of any claim, not specified in section 6, which might be made against the county for damages for wrong or injury to person or property, or for the death of a person, within six months after the injury complained of, to the clerk of the board of supervisors and to the county attorney, if there was one. As originally enacted its title was — “Presentation of claims for injury to person or property.” In 1936, section 6-a, as it then stood, was repealed, and in its place section 6-a, as it now substantially reads, was enacted. Its title was then changed so that it now reads — “Presentation of certain other claims.” The first sentence, which is the part applicable to the present discussion, reads substantially the same as the original section 6-a, namely — “Any claim against the county, not specified in section six of this chapter for damages for death, or for injury to person or property, etc.” The claims which it describes are required to be filed within three months after the accident with the clerk of the board of supervisors and with the county attorney, if there be one. In addition, as re-enacted, it requires the service of a notice of intention to commence an action on the county attorney, if there be one, and if not, upon the clerk of the board of supervisors, within the same period of three months. In 1939, by chapter 724 of the Laws of. that year, both sections were amended to make special provision for the county of Nassau. Again, in 1940, both sections were amended, by chapter 407 of the Laws of that year, in minor particulars.
When section 6-a is read the difference between it and section 6 is at once apparent. Section 6-a has never purported to impose any liability upon the county. It always has been purely procedural, by prescribing the requirements for the presentation of claims, other than those included in section 6, which might give rise to a cause of action against the county.
The present action is brought under section 130 of the Dece*554dent Estate Law. As such, it is based on a claim of negligence on the part of the county in the construction and maintenance of one of its highways, whereby the decedent’s death was caused. Had the decedent lived, there can be little question but that he would have been required, if he were to enforce any claim against the county, to have complied with section 6. This action, brought after his death, is based upon the same identical claim which he would have had had he lived. While, undoubtedly, the death action, in a technical sense, is a new cause of action, substantially, however, it is a continuation of the original cause of action for the benefit of those dependent on the deceased, or who have been injured by the personal wrong done to him. (Titman v. Mayor, etc., of New York, 57 Hun 469, 473.) Section 130 of the Decedent Estate Law gives no right to the personal representative except to enforce the very claim which the decedent would have had had he lived.
In the- light of the foregoing it is rather difficult, without doing violence to plain English, to see how the provisions of section 6-a apply to the instant claim, and this, even conceding that the present action and the one which the decedent, had he lived, would have brought, are different in their nature. It is urged, however, that section 6, in terms, merely afforded a remedy for injuries to person or property, and therefore was never intended to embrace a claim for wrongful death. The difficulty with that contention is, that it ignores the construction placed by the Court of Appeals, in at least three decisions, upon a statute in all respects sui generis, namely— (Titman v. Mayor, etc., of New York, 125 N. Y. 729, unanimously affirming 57 Hun 469, on the opinion of Justice Willard Bartlett; Crapo v. City of Syracuse, 183 N. Y. 395, and Conway v. City of New York, 208 N. Y. 567, unanimously affirming 148 App. Div. 915, on the opinion of Justice Clarke on the first appeal in the action, 139 App. Div. 446). All three cases distinctly held that a statute imposing liability on certain municipalities for damages to person or property caused by the negligence of the city, embraced an action for wrongful death. The ruling of the Court of Appeals, above cited, is fortified by the construction placed by the Bench and Bar of this State for more than half a century upon another sui generis statute, chapter 700 of the Laws of 1881, which imposed liability on towns for the neglect of commissioners of highways in the care of town roads. The applicable part of that statute read — “damages to person or property.” Throughout all the varied changes made in the original statute, today, as section 215 of the Highway Law, in *555its essential part, it reads, and has read the same. At no time has it ever mentioned a claim for wrongful death. Yet it has always heen construed as including such a claim, and apparently is so construed today. (Bryant v. Town of Randolph, 133 N. Y. 70; Lane v. Town of Hancock, 142 N. Y. 510; Spencer v. Town of Sardinia, 42 App. Div. 472; Tebeau v. Town of Hannibal, 256 App. Div. 1049; Dodge v. Town of North Hudson, 177 F. 986, s. c., 188 F. 489.) While the question does not appear ever to have heen distinctly raised that this statutory provision did not include a claim for wrongful death, it at least seems strange that if it did not, the question, over a period of more than fifty years, would not have been presented somewhere.
When former section 12-a of the Court of Claims Act was adopted in 1929 (Laws of 1929, ch. 467), waiving the State’s immunity for torts and permitting the Court of Claims to hear and determine all claims against it to recover damages for injuries to property, or for personal injury caused by the negligence of its officers or employees, it did not mention a claim for wrongful death. Thereafter the very question here presented was raised in Smith v. State of New York (148 Misc. 524). This question was decided adversely to the defendant, but the claim was dismissed on the merits. This was reversed and a new trial directed in 241 App. Div. 656. On the second trial the claimant had an award. (154 Misc. 849.) This judgment was affirmed in 243 App. Div. 682, and again by the Court of Appeals in 268 N. Y. 551. On each trial and on each appeal, the defendant squarely presented the point that former section 12-a of the Court of Claims Act, because it did not expressly waive immunity for wrongful death, did not include such an action. The final affirmance of the judgment can lead to no other conclusion but that this objection was overruled. Again, in every one of the reported cases against counties for wrongful death by reason of defective highways or bridges, where the accidents occurred subsequent to the adoption of section 6-a, the plaintiffs served notices under section 6. (Khoury v. County of Saratoga, 267 N. Y. 384; Huston v. County of Chenango, 278 N. Y. 646; Kane v. County of Cayuga, 254 App. Div. 613; Dekowski v. County of Montgomery, 263 App. Div. 697; Williams v. County of Saratoga, 266 App. Div. 431.) Although it is true that the point does not seem to have been specifically presented, the observation made as to death claims, under the Highway Law and the predecessor statute, applies.
*556While it may be conceded that there is, in some other jurisdictions, authority to the contrary, the Titman, Crapo and Conway decisions (supra) have never been overruled, and it seems logically to follow that, in this jurisdiction at least, a claim for wrongful death under a statute such as section 6 of the County Law, although not specifically mentioned, is embraced within it. This has always been the common interpretation of such statutes by the legal profession of this State. What was said by Justice Bartlett in the Titman case (supra) is as applicable today as when made, namely — that nine out of every ten lawyers would consider an action for wrongful death arising through negligence as one for personal injuries. Although in the Crapo case (supra) Judge O’Brien does say that such an action is not one to recover for personal injuries, his six associates thought otherwise. Moreover it is significant that all seven judges agreed that the action was included within the sui generis statute there considered, although not specifically mentioned therein. Therefore, even conceding, if such concession is necessary, that this present action is technically not one to recover for a personal injury within the meaning of section 37-a of the General Construction Law, which, however, by section 110 of the same law, does not apply where the language used or the context shows a different intent, still there can be little question but that the claim upon which the death action is based has always been treated by the courts of this State as included within a statute such as section 6 of the County Law.
While, probably, since the adoption in 1929 of former section 12-a of the Court of Claims Act, and certainly since the enactment in 1939 of present section 8 of the same Act, in the light of Holmes v. County of Erie (178 Misc. 46, affd. 266 App. Div. 220, affd. 291 N. Y. 798) the right to enforce a claim for injury arising through the negligence of the county in the construction or care of its highways is no longer dependent upon section 6, still that section remains unrepealed and unchanged. It was re-enacted in its present form in 1940. It names the officers upon whom service of the claim must be made. The same is true of section 6-a. It still remains unrepealed with the same words of exclusion of claims arising under section 6. Therefore, even though section -6, as a remedial statute, is now unnecessary, it still exists, until the Legislature repeals it, as the procedural statute for the enforcement of claims against counties because of defective highways. Conceding that the State, for the counties, waived all their governmental immunity and has consented that they, as subdivisions, *557be sued for their torts, still the Legislature has the right to prescribe the conditions upon which such claims may be enforced. It certainly would have the right to say that a claim on account of a defective county road must be presented to a different county officer than one arising from the negligent operation of a county motor vehicle. It has long been established that compliance with a direction in a statute of this character, as to service, upon certain particular officers, is mandatory. Typical of such decisions "is Rogers v. Village of Port Chester (234 N. Y. 182, 187).
For the foregoing reasons the order should be reversed and the complaint, dismissed, with costs.
All concur with Habéis, J., except Labkin, J., who dissents and votes for reversal and for granting the motion in a separate opinion. Present — Cunningham, P. J., Dowling, Habéis, MoCubn and Labkin, JJ.
Order affirmed, with ten dollars costs and disbursements. [See post, p. 1041.]