Respondents have judgments against the City of Schenectady for personal injuries and derivative damages, arising from a fall of the respondent Elsie S. Fullerton, which was caused by a defective sidewalk. As to the issues of negligence and contributory negligence we would without hesitation affirm the findings of the jury. The difficulty in these cases arises from a local law, adopted by the City of Schenectady on May 4, 1935 (Local Laws, 1935, No. 6 of City of Schenectady), which requires written notice of a defective sidewalk to be given to the commissioner of public works at least twenty-four hours previous to the accident as a prerequisite to the maintenance of any action against the city for damages. Ooncededly no such notice was given by either of the respondents in this case, nor does the complaint allege that a written notice was given by anyone else, and hence if the local law was valid at the time the respondents have no case. The question was properly raised by a motion to dismiss the complaint on that ground during the course of the trial.
This court, in 1937, held that the very local law in question was invalid (Hayward v. City of Schenectady, 251 App. Div. 607). As a matter of course the trial court in this case followed that decision and held in effect that constructive notice of the alleged defective condition in the sidewalk was sufficient under section 244 of the Second Class Cities Law.
The rationale of the decision in the Hayward case was briefly: That the Schenectady local law was inconsistent with section 244 of the Second Class Cities Law; that this statute was of general application to all cities of the second class, and hence beyond the power of supersession by any local law under the Constitution and statutes as they then existed. As we examine the proposition again it seems to us that the court in deciding the Hayward case overlooked the basic application of the Second Class Cities Law as defined in the enactment itself. The language of the act is specific: “ § 4. Application of chapter. A provision of this chapter shall apply, according to its term, only to a city of the state which on the thirty-first day of December, nineteen hundred and twenty-three, was a city of the second class, until such provision is superseded pursuant to the city home *547rule law or otherwise changed, repealed or superseded pursuant to law.” (Emphasis supplied.)
"Whatever may have been the purpose of continuing the Second Class Cities Law it seems clear from the foregoing language that the Legislature did not intend to put any of its provisions beyond supersession by city home rule. Under such circumstances to say that the Schenectady local law was inconsistent therewith amounts to a contradiction in terms. The only logical argument that could have been used to condemn the local law was to say that it was beyond the constitutional power of the Legislature to delegate to a city of the second class the right to supersede provisions of a statute that applied to it. An examination of the Constitution as it then existed discloses no such prohibition.
Section 3 of article XII of the State Constitution, in effect at the time the local law was enacted, provided in part: ‘‘ Every city shall have power to adopt and amend local laws not inconsistent with the constitution and laws of the state relating to * * * the transaction of its business, the incurring of its obligations, the presentation, ascertainment and discharge of claims against it, the acquisition, care, management and use of its streets and property ”. (Emphasis supplied.)
That section conferred rather broad powers on the Legislature to enact city home rule legislation. I see nothing in it that attempts to preserve the doctrine of constructive notice in sidewalk cases, or anything that restricts the legislative power to permit the abolition of such a rule by city home rule legislation. It seems rather obvious that the liability of any city, where it may exist in cases of this character, arises from the “ care, management and use of its streets ”, and the inclusion of these words in the constitutional section quoted carry by clear implication the power to determine by local law what type of notice may be required as a prerequisite to liability in such cases. This power was limited only by the requirement that it should not be exercised inconsistently with the Constitution and laws of the State. Certainly its exercise with regard to second class cities was not repugnant to the Constitution, and it was not inconsistent with the Second Class Cities Law because, as I have already indicated, that statute specifically permitted the super-session of any of its provisions by local laws. For these reasons I think the Schenectady local law was constitutional at the time the Hayward case was decided and that such decision should no longer be followed.
Passing to the City Home Eule Law (§ 11, subd. 1) as it existed at the time (L. 1924, ch. 363, as amd. by L. 1928, ch. 670), *548it may be noted that its language followed that of the constitutional provision in almost identical words. Hence there is no persuasive reason to assert that the local law violated any legislative enactment.
In 1938 the constitutional provision dealing with home rule legislation (art. IX, § 12) was considerably enlarged and the City Home Rule Law was correspondingly expanded. (L. 1939, ch. 867.) In my judgment, however, it is not necessary to rely upon these later amendments or to attempt the avoidance of any conflict with the saving clause of the present City Home Rule Law contained in section 36 thereof. I am constrained, therefore, to place this decision on the basis that the local law in question was valid under the Constitution and statutes as they existed at the time it was enacted.
I readily agree that local laws of the character involved here are in reality attempts to bar tort actions under the guise of a procedural requirement, and that they put upon many deserving litigants an impossible burden. However, it is too late in the day to urge this consideration as decisive. This matter was debated and determined long ago. (MacMullen v. City of Middletown, 187 N. Y. 37.) We, therefore, deal only with a question of legislative power, and whether the Schenectady law is reasonable or unreasonable is of little moment. Section 8 of the Court of Claims Act, under which the State has waived its sovereign immunity, in nowise alters the situation. That waiver merely applies to areas where before its enactment a defense of sovereign immunity might have been interposed. In any event the decision in Ellis v. City of Geneva (259 App. Div. 502, aifd. 288 N. Y. 478) is decisive against any such claim. That case held the local law of a third class city, similar to the one involved here, was constitutional and not subversive of any fundamental law of the State. If the waiver provision of the Court of Claims Act were applicable at all so far as notice is concerned, it would have been applied to all cities irrespective of their class.
The judgments should be reversed and the complaints dismissed.