(dissenting). We are all in accord that these judgments should be affirmed were it not for the failure to allege and prove compliance by the plaintiffs with Local Law No. 6 of 1935 of the City of Schenectady which requires, as a condition precedent to liability for sidewalk injuries, that written notice of the place and nature of the defective sidewalk be given *549to the commissioner of public works at least twenty-four hours before the injuries are sustained.
I think Local Law No. 6 is unavailable to the city as a defense to these actions. Local Law No. 6, the identical enactment here under consideration, has been held invaEd and void by this court. (Hayward v. City of Schenectady, 251 App. Div. 607.) That decision has never been reversed, overruled or superseded. The court below was bound by it and undoubtedly relied upon it. Presumably the City of Schenectady and other cities have disposed of an unknown volume of sidewalk litigation without asserting, until now, the power of a city to impose the requirement of advance written notice. In the interests of certainty, stabiEty and predictability of the law, this court should be bound to adhere to that decision under the principle of stare decisis.
Moreover, Local Law No. 6, by its terms and its effective results, goes beyond the power of the local legislative body to enact. I cannot accept the delusion that it deals with a procedural matter, or that it has anything to do with the notice, presentation, ascertainment or discharge of claims against the city. By its terms it imposes a condition precedent to EabiEty before there is any claim. This local law must be faced head-on for what it patently is, a change in the fundamental law of the State and a limitation of primary EabiEty for certain torts, and, in most cases, an absolute immunity from EabiEty for certain torts, for which others, under a Eke situation, are liable.
I find nothing in the Constitution of the State of New York or in the City Home Buie Law as they existed when this local law was enacted in 1935, or, for that matter, as they are presently worded, which authorizes or empowers the local legislative body oí a city to thus change the fundamental law of EabiEty for torts. It is not a matter of purely local concern, arising out of conditions peculiar to and limited to the City of Schenectady.
Granted that the city had the power to amend or supersede the Second Class Cities Law, it had such power only with respect to the matters enumerated in the State Constitution and the City Home Buie Law. Section 3 of article XII of the Constitution, in effect at the time, authorized the enactment of local laws not inconsistent with the Constitution and laws of the State relating to ‘1 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”. Subdivision 1 of section 11 of the City Home Buie Law used the same language except that *550the Legislature significantly omitted “ the incurring of its obligations ”.
There is not found in those provisions any such words as “ its liability for defective maintenance of its streets or property ” or any words of similar import. If such drastic power were intended surely it would not have been hidden in the words “ acquisition, care, management and use ”, especially when those words apply equally to ‘ ‘ its streets and property ’ ’. If the city had the power to enact this local law it had the power to legislate, as a condition precedent to liability, the requirement of an advance written notice of any dangerous defects in its buildings, vehicles and equipment, without regard to its actual knowledge of the defects. If it lacks the power for the latter it lacks the power for the former.
Given their ordinary and accepted meaning, I cannot construe the words “ acquisition, care, management and use ” as conveying any power beyond the necessary legislation to acquire and own the streets and regulate the use of them by the public and to prevent their misuse. “ The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit. ’’ (Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 234, affd. 256 N. Y. 619; see, also, Matter of Kress & Co. v. Department of Health, 283 N. Y. 55.)
To be valid a local law must ‘‘ have a substantial relation to matters within the field where legislative power is vested in the local legislative body of the city by the Constitution and statutes of New York. They must be reasonably calculated to achieve a legitimate public purpose.” (Good Humor Corp. v. City of New York, 290 N. Y. 312, 317.) The same case holds that the object of the local law must be an object which the city has the constitutional power to make effective. I do not think that anyone will assert, except with tongue in cheek, that the object of the local law here under consideration is other than to reduce the liability of the city for sidewalk accidents and to fix a standard of liability different from that prevailing in the State as a whole.
It would seem to need little to demonstrate that this local law does in effect offend the fundamental law of liability for torts. It not only abolishes the rule of constructive notice, it removes from consideration actual notice and actual knowledge, no matter how long standing Though all the officers of the city *551admitted long-standing actual knowledge of the precise dangerous condition and long-standing opportunity to repair, liability is still dependent upon a written notice to a particular official. Thus the only accomplishment of the local law in such a case is to immunize the city from liability. I venture that no one would contend that a city has the power to enact a local law providing that it “ should not be liable for the negligence of its officers, agents or employees in relation to its streets.” If that cannot be done directly it cannot be done indirectly under the cover of any guise or subterfuge.
This local law is inconsistent with the public policy of the State and with section 8 of the Court of Claims Act, which has been held to apply to all cities. (Bernardine v. City of New York, 294 N. Y. 361.) Though the main purpose of sectioh 8 was to waive sovereign immunity, after expressly doing so, it goes further and expressly “ consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations ”. The Court of Appeals has said “ we were brought all the way round to a point where the civil divisions of the State are ánswerable equally with individuals and private corporations for wrongs of officers and employees ”. (Bernardine v. City of New York, supra, p. 365.) If Local Law No. 6 is valid the liability of the City of Schenectady differs substantially from the liability of the State, many civil divisions of the State, and all individuals and private corporations, and sidewalk claims against it may not be “ determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or private corporations.”
MacMullen v. City of Middletown (187 N. Y. 37) does not help us, because it involves the power of the State Legislature, not the power of a city legislative body — an entirely different matter.
I do not regard Ellis v. City of Geneva (288 N. Y. 478) as controlling. The local law there involved was not as far-reaching as this one. In that case several grounds were urged for dismissal of the complaint, and it was dismissed. The Court of Appeals affirmed without opinion, and it may he regarded only as an affirmance of the result in that particular case.
I think the judgments should be affirmed.
Bergan and Imrie, JJ., concur with Foster, P. J.; Cook, J., dissents, in an opinion in which Zeller, J., concurs.
Judgments reversed, on the law, and complaints dismissed, without costs. We affirm the facts.