(dissenting). The cause of action for wrongful death brought under section 130 of the Decedent Estate Law is a new and distinct cause of action for damages for the benefit of named beneficiaries. In my opinion the action is not maintainable because no demand for such damages was made upon the municipality and payment thereof refused, and no notice of intention to sue was served upon the corporation counsel and the comptroller. (Administrative Code of City of New York, § 394a-1.0; L. 1937, ch. 929.) These elements are conditions precedent when the City of New York is the defendant, and this section of the Administrative Code must be read as if it were part of section 120 of the Decedent Estate Law. A notice filed by an injured party is not notice that in case he dies from the injuries suffered, his distributees or representative will bring another action for the death. That the defendant was aware óf the facts pertaining to the accident is beside the question. (Marcantonio v. City of Beacon, 158 Misc. 851, affd. 247 App. Div. 822.)
Hagarty, Johnston and Lewis, JJ., concur with Close, P. J.; Adel, J., dissents and votes to reverse the order denying the *101defendant’s motion to dismiss the first cause of action in the plaintiff’s supplemental complaint and to grant the motion, with memorandum.
Order affirmed, with ten dollars costs and disbursements. [See 269 App. Div. 755.]