On April 5, 1948, claimant was seriously injured when the automobile which he was operating collided with a bridge located on the State highway between G-lens Falls and Hudson Falls. It is asserted that claimant’s injuries were sustained solely because of the negligence of the State of New York in the maintenance of the bridge and the approach thereto.
In the treatment and care of his injuries claimant was confined, first, in a hospital for a period of sixty-two days and, thereafter, to his bed in a state of immobility for an additional period of eighty-six days.
In his affidavit claimant alleges that because of the nature and extent of his injuries he was unable to consult an attorney until December, 1948. Later his attorney advised him that a claim for damages should have been filed within ninety days of the date of the accident.
On September 28, 1949, claimant noticed a motion, based on his own affidavit and on a proposed claim annexed thereto, for an order, pursuant to the provisions of section 10 of the Court of Claims Act, permitting him to file a claim.
The application was heard and denied by the Court of Claims on October 26, 1949. From the order of denial claimant has come to this court.
Subdivision 3 of section 10 of the Court of Claims Act provides that a claim to recover damages because of the negligence of the State “ shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which *218event the claim shall be filed within two years after the accrual of such claim.”
Subdivision 5 of the same section provides that when a claimant neglects to file a claim or a notice of intention within the time limited the court may, in its discretion, permit the filing of a claim within the two-year period, or, in a case of wrongful death within two years after decedent’s death. The pertinent provision of the statute is: “ The application for such permission shall be made upon motion based upon affidavits showing a reasonable excuse for the failure to file the notice of intention and that the state or its appropriate department had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the essential facts constituting the claim.”
From these statutory provisions it is evident that the only requirement is that the proof shall show “ a reasonable excuse for the failure to file the notice of intention ”. Obviously the only excuse contemplated by the statute is for failure to act during the ninety-day period. The State has made no serious attempt to refute the statement in claimant’s affidavit that he was incapacitated for over one hundred and forty-eight days — a period of time well beyond the ninety-day limitation. In fact the Judge who heard the motion in his decision said: “ This man was injured on April 5th. He stayed in the hospital until June 5th, and we will give him credit for that time. From June 6th to September 1st he claims that he was confined to his bed and we will give him credit for that.”
In view of the time that claimant was incapacitated and bearing in mind the quoted remarks of the Judge who heard the motion we think claimant was not called upon to offer any further proof or excuse for his failure to file the notice of intention.
The State contends that claimant has failed to show that it “ or its appropriate department had, prior to the expiration of the time limited for the filing of the notice of intention, actual knowledge of the essential facts constituting the claim.”
We think this argument is not meritorious. In his moving affidavit claimant asserts: ‘ ‘ That your deponent is informed and verily believes that the State of New York cannot plead surprise or prejudice because of the delay in filing this claim inasmuch as a report of this accident was filed with the Bureau of Motor Vehicles of the State of New York; the accident was investigated by the New York State Police and a report filed; an investigation and Hearing held by the Bureau of Motor *219Vehicles of the State of New York and report filed; the Department of Highways of the State of New York are fully informed of the facts and circumstances surrounding the accident and the condition of the road and related circumstances which caused the accident and that they are further cognizant of the fact that the condition which existed at the time of the accident has not been corrected.”
We think the affidavit is sufficient to establish notice to the State and also that it has not been prejudiced by the delay (Toof v. State of New York, 260 App. Div. 830, affd. 285 N. Y. 620; Hunter v. State of New York, 268 App. Div. 948).
The case of Chergotis v. State of New York (259 App. Div. 369) upon which the State relies is not in conflict with these views. There we upheld an order denying permission to file a claim. We based our decision on the ground that the proposed claim failed to state a cause of action. In that case it appeared that the driver of the car which inflicted the fatal injuries was a police officer assigned to duty to one Todd while the latter was acting as a prosecutor in a criminal proceeding in Kings County. The car involved was not owned by the State and neither the driver nor the passenger was either an officer or an employee of the State.
The only contradiction of these allegations is found in an answering affidavit of an assistant attorney-general in which it is said “ that the State has been substantially prejudiced ” by the delay. Then follows this significant sentence “ That no investigation of this accident has been made by any official of the Department of Public Works.” (Emphasis supplied.) This court is not quite so naive as to accept that statement as a denial of want of knowledge on the part of the State.
On this record we may not say that the State has been prejudiced by the delay in filing the notice. Without deciding upon whom the burden of proof rests in that respect it is very apparent that the State would have much less difficulty in showing that it has been prejudiced than claimant would have in showing the contrary.
The argument, which is given so much emphasis, that the order under review is discretionary and that consequently we should not disturb it, is without any persuasive force. We exercise our own discretion. Our powers of review comprehend the right to review an exercise of discretion by inferior courts and, equally, the right to exercise our own discretion, independently, when the facts, or circumstances, of the case are *220such as to justify it (Pietraroia v. New Jersey & Hudson Riv. Ry. & Ferry Co., 197 N. Y. 434, 437).
In Matter of Bond (251 App. Div. 651, 654) this court said: ‘1 Almost every form of relief has been time out of mind labeled ‘ discretionary.’ * * * The idea which it is designed to express is real, if perhaps vague. Discretion is not the judge’s sense of moral right; neither is it his sense of what is just. He is not clothed with a dispensing power or privileged to exercise his individual notions of abstract justice. With him there is no scope for judicial caprice. Principles of law are to be ascertained and followed. Justice is administered in the courts on settled and fixed principles. It does not vary, ‘ like the Chancellor’s foot.’ The rights of litigants do not rest in the discretion or grace of the judge. In all cases that come under his consideration a judge must act with discretion and discrimination and give weight to every circumstance bearing on the question to be adjudicated. He is not at liberty, in determining personal or property rights, to act at his own discretion unrestrained by the legal and equitable rules governing these rights.”
The order appealed from should be reversed on the law and facts, with $25 costs and disbursements, and the motion granted.