(dissenting). Following injuries which befell the plaintiff, G-iacinto Teresta, Avhile a passenger in a trolley car operated by agents of the City of Nbav York, he Avent personally — without advice of counsel — to various city agencies in an effort to present his claim against the municipality for the *444injuries he suffered. Finally, at one of the city’s agencies, he was given not only a form to fill in but also an instruction sheet — which, according to the record before us “ * * * specifically, among other things, directed him to serve this claim by registered mail.” Heedless of such instruction the plaintiff chose to serve his claim by “ ordinary mail ”, which manner of service did not conform with the following provisions of subdivision 3 of section 50-e of the General Municipal Law as the statute then read: “ The notice shall be served on the party against whom the claim is made by delivering the notice, or a copy thereof, personally, or by registered mail, to the person, officer, agent, clerk or employee, designated by law as a person to whom a summons in an action in the supreme court issued against such party may be delivered ” (italics supplied).
Although obviously the <£ manner * * * of service ” chosen by the plaintiff did not conform with the requirement of the statute quoted above, it is the view of a majority of the court that when the city failed not only to return the plaintiff’s notice but also failed — until the trial— to object to the manner in which it had been served, and meantime conducted a pretrial examination of the plaintiff, the statutory requirement of service of the claim ££ personally, or by registered mail ” was thereby waived.
Technical though the city’s resistance to this claim may be, it is technical only to an extent clearly warranted by a separate provision of section 50-e id., viz., subdivision 6, which provides in part: ££ * * * a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby ” (italics supplied).
If the words italicized in the statute last quoted above do not declare the Legislature’s intention thereby to prevent a waiver by a municipality of the ££ manner ” expressly prescribed in subdivision 3 of section 50-e id. for service by a claimant of his notice of claim, one is at loss to know what could better record that intent.
*445Indeed, on one occasion when this court dealt with a similar problem Chief Judge Cajrdozo wrote — “ The Legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall b3 a prerequisite to the right to sue. The courts are without power to substitute something else. ’’ (Thomann v. City of Rochester, 256 N. Y. 165, 172.)
Nor is the plaintiff’s position reinforced if, as he claims, the city was not prejudiced by the irregular manner he chose to serve his claim. Upon that phase of the case the statement by Judge Pound writing for the court in Ponsrok v. City of Yonkers (254 N. Y. 91, 95), has peculiar application to the case we now review —1 ‘ The fact that the city has not been prejudiced is immaterial. The court may not exercise a dispensing power based on the principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with.” (See, also, Purdy v. City of New York, 193 N. Y. 521, 524-525; 4 Dillon on Municipal Corporations [5th ed.], § 1613, pp. 2814-2817.)
Believing, as I do, that “ A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration ” (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639; People v. Olah, 300 N. Y. 96, 102), and finding in the statute here involved an expression of legislative intent opposed, in my view, to the decision about to be made herein, I dissent and vote for affirmance.
Lougkhran, Ch. J., Conway, Desmond and Froessel, JJ., concur with Fuld, J.; Lewis, J., dissents in opinion in which Dye, J., concurs.
Judgments reversed, etc.