(dissenting). The question before us is whether section 50-e of the General Municipal Law (L. 1945, ch. 694) is so absolute, unyielding and rigid as to be beyond a construction which admits of an excuse for delay in performance, when caused by the infancy of the injured person, in this case twelve years of age. A majority of the court take the view that it is,- and, though the infant be of tender years,' much too young to do anything for itself, it will lose its right of action if notice of claim is not filed in any event within a year after the happening of the accident. Of what moment is a year to a young child of three or six, or nine or even twelve?
We have held that rights accorded by law to infants are not forfeited “ because a parent did not perform for an infant where performance was excused because of the infancy,” (Murphy v. Village of Fort Edward, 213 N. Y. 397, 403; Russo v. City of New York, 258 N. Y. 344, 348.) Are we to assume, then, *240that the Legislature intended that though a child of tender years is incapable of filing a notice of claim, and may not be charged with the parents’ neglect to do so for him, he is in all events to be barred from a right of action that is otherwise saved for him during the entire period of his infancy (Civ. Prac. Act, § 60) despite such impossibility of performance? I cannot agree that such was the legislative intention, notwithstanding its failure to adopt a particular recommendation of the Judicial. Council, to which I shall later refer.-
Long before the enactment of section 50-e, this court had established the rule that claimants might be excused from compliance with the strict letter of similar statutes by reason either of physical or mental disability or of infancy.
In Walden v. City of Jamestown (178 N. Y. 213, 217), we said: ‘ ‘ It is an accepted maxim that the law does not seek to compel a man to do that which he cannot possibly perform. ’ ’ In Winter v. City of Niagara Falls (190 N. Y. 198), the statute provided that notices of claim shall be presented “ ‘within thirty days after the occurrence causing such damages ’ ”, and that the omission to do so “ ‘ shall be a bar to an action against the city .therefor ’ ” (p. 202). Could the injunction of this statute be more definite? Yet we said (p. 203): “ To require the presentation of a claim within a specified time is quite a reasonable provision * * *. The provision is not so rigid as to be beyond a construction, which admits of a substantial compliance with its requirement, or of an excuse for delay in performance, when caused by the inability of the injured person to comply.”
In Forsyth v. City of Oswego (191 N. Y. 441), the statute required that notice of claim be presented within three months after the happening of the event, and that the omission to do so “ ‘ shall be a bar to any action or proceeding therefor against the city.’” (P.443.) Despite the same explicit injunction we again asserted the proposition that the law does not seek to compel that which is impossible.
In Murphy v. Village of Fort Edward (213 N. Y. 397, supra), a notice of claim was filed almost twenty-three months after the injury, despite the provision that no action shall be maintained unless the notice of claim shall have been filed within sixty days after the accrual of the cause of action. We there again recognized that municipal liability for injuries is a matter *241within the control of the Legislature, and that the requirement that claims be presented within the specified time is a reasonable provision; that said requirement, however, is not absolute and unyielding, and continued (pp. 403, 404): “ We are of the opinion that immature infancy, which includes the age of five years, is, as a matter of law, a condition of physical and mental inability excusing compliance with the requirement of section 341. It is reasonable to conclude that inability is attributable to a first period of infancy and ability is attributable to a final period, as a matter of law, and through a period lying between those two the question of ability is a question of fact to be submitted to and determined by the jury. * * * The conclusion here reached is, as appears from our prior decisions already cited, within the legislative intention and is just.”
In Staszewski v. City of Rochester (271 App. Div. 19, affd. 296 N. Y. 705) a ten-year-old infant failed to file a claim within thirty days as required by the Charter of the City of Rochester. The charter provided that “ no action may be maintained ” unless this were done — another rather definite injunction. It further provided that the section “ applies to claims of infants and all other persons.” The city contended that because of that provision infants who had not filed a claim within thirty days were barred. The court pointed out that the New York rule enunciated in prior decisions, excusing an infant from strict compliance with such statutory requirements, was not based on the thought that the section did not apply to infants. On the contrary, our courts have always recognized that these requirements do so apply. But the infant is excused from such compliance only where his immaturity renders him physically or mentally unable to comply.
When the Legislature enacted section 50-e, it must have known that in the Winter and Forsyth cases (supra) the statutes under consideration contained the rather positive language that omission to file a claim in time ‘‘ shall be a bar ’ ’ to any action against the city, and that in the Murphy and Staszewski cases (supra) the statutes provided that in case of such omission “ no action shall [Murphy case] [may, Staszewski case] be maintained ”, and that we nevertheless held such statutes were not “ absolute and unyielding ”. It must also be deemed to have known what the Judicial Council specifically pointed out *242immediately following its recommendation in its Tenth Annual Report and Studies, 1944 (p. 269): “ Existing notice provisions in New York do not include an exception in favor of a claimant.who is under a legal disability. However, the courts of New York have been liberal in the construction of these provisions,; and have sustained a notice given within a reasonable time after the disability ceases, although the prescribed period for notice has expired. The inclusion of the proposed exception substantially codifies the decisional law of New York on this point. The proposal is in accord with analogous statutory provisions of this and other states, and liberal legal thought.”
I do not think we must conclude that,.because the Legislature did not adopt the particular recommendation of the Judicial Council, which embraced, not only infants but physically incapacitated adults as well, that it meant to overrule the decisional law with regard to: immature infants. If it had adopted the .exact language- of-.the Council’s recommendation, the Legislature would have; extended, as to adults, the short period of limitation — usually one year (see Appendix, Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 284-296) —found in "most municipal charters within which the action itself must be begun, and we can readily understand why this was not desired. It is more reasonable to assume, it seems to me, that the Legislature, recognizing the decisional law upon- the subject with regard to immature infants, intended to leave untouched the principle - laid down by our decisions before the enactment of section 50-'e,- which- liberally interpreted statutes much stricter than-the one here under review. I think it is also clear that the purpose of the. statute, which followed conferences with representatives of municipal corporations, was, as the Judicial Council pointed out, “ to rectify the frequent and often gross injustices by which defects in form have prevented consideration on their merits of claims against municipal corporations ”, as well as. the “ unification of the many diverse provisions found in various municipal charters and statutes ” (Eleventh Annual Report of N. Y. Judicial Council, 1945, p. 51).
Despite the limitation of a year found in section 50-e, I am of the opinion that the Legislature did not intend to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility and *243for whom, it has provided many safeguards, and that it did not intend to require them to do that which is impossible of performance.
It is a general rule of law that no unjust or unreasonable result was intended by the Legislature, and a statute must be interpreted, if possible, so as to avoid such results (Matter of Breen v. New York Fire Dept. Pension Fund, 299 N. Y. 8, 19; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499, 509); in avoiding an unjust result, it is permissible to disregard the literal language of a statute and give it a rational interpretation, consistent with justice and common sense (Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44; People ex rel. Twenty-third St. R. R. Co. v. Commissioners of Taxes of City of N. Y., 95 N. Y. 554, 558-559; People ex rel. Westchester Fire Ins. Co., v. Davenport, 91 N. Y. 574, 584-585; Surace v. Danna, 248 N. Y. 18, 21), even extending to “ exceptions through implication ” (Matter of Meyer, 209 N. Y. 386, 390).
In accordance with the well-established rule as followed by this court in these situations over a long period of years, and in the light of the above rules of construction, the statute "under review should be interpreted so as to allow the present application to be made, and the court’s discretion to be exercised, beyond the period specified in section 50-e in the case' of this twelve-year-old infant; to hold otherwise would be tantamount to depriving young and immature infants of their right of action. It is no answer to say that it is not ordinarily impossible for an immature infant to have claims filed and suits brought in its behalf. Such an infant’s rights may not be made dependent upon the fidelity of others.
The order appealed from should be reversed, with costs to abide the event, and'the matter remitted to Special Term for further proceedings.
Loughran, Ch. J., Lewis, Dye and Fuld, JJ., concur with Desmond, J.; Froessel, J., dissents in opinion in which Conway, J., concurs.*
Order affirmed.
See, also, Chavers v. City of Mount Vernon, 301 N. Y. 634. —[Rep.