(dissenting). The pivotal question upon which our decision hinges, is when did the cause of action accrue within the purview of section 341 of the Village Law. Unless otherwise provided by statute, a cause of action accrues so as to start the running of the Statute of Limitations at the point when the plaintiff may institute and maintain the action and not before. (Halsted v. Silberstein, 196 N. Y. 1, 16; Cary v. Koerner, 200 N. Y. 253; Jacobus v. Colgate, 217 N. Y. 235, 241, 245; Cameron Estates v. Deering, 308 N. Y. 24, 30; see, also, 54 C. J. S., Limitations of Actions, § 109; Bouvier’s Law Dictionary [Baldwin’s Students ed.], p. 156; Black’s Law Dictionary [4th ed.], p. 37.) Likewise, section 11 of the Civil Practice Act provides that the periods of limitation set forth therein must be computed from the time of the accruing of the right to relief by action, special proceeding, defense or otherwise.
The above common-law rule as to when a cause of action accrues was well established in 1945 when the Legislature enacted the present section 341 of the Village Law. The Legislature presumably was familiar with such common-law rule. Had it intended the one-year Statute of Limitations to run from the time of the happening of the accident or injury, *66it would have expressly so stated as it did in section 244 of the Second Class Cities Law.
Rules of the common law are abrogated no further than the clear import of the language used in the statute absolutely requires, (Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345, 355; McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 301.) There is no indication in the statute itself that the Legislature considered the words “ one year after the cause of action therefor shall have accrued ’ ’ as synonymous with, or meaning the same as 1 ‘ one year after the time of the happening of the accident or injury ”.
The making and serving of the notice of claim prior to commencement of the action is something more than a mere procedural regulation. It is an essential part of the cause of action which must be alleged in the complaint and proven upon the trial. (Reining v. City of Buffalo, 102 N. Y. 308; Winter v. City of Niagara Falls, 190 N. Y. 198; Murphy v. Village of Fort Edward, 213 N. Y. 397.) It is not possible for the plaintiff to commence his action prior to his compliance with section 50-e of the General Municipal Law. Obviously, it is not possible for one to have a cause of action and at the same time not to have the right to sue. (See Jacobus v. Colgate, 217 N. Y. 235, 241, 245, supra.) “ The whole matter of the maintenance of this class of actions was within the control of the legislature. It could refuse a right of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions ”. (Curry v. City of Buffalo, 135 N. Y. 366, 370.) Since the statute in question here refuses the plaintiff the right to commence an action until 30 days after a claim is presented in compliance with section 50-e of the General Municipal Law, the one-year Statute of Limitations contained in section 341 of the Village Law begins to run at the time when he is first permitted to bring the action. (Rice v. City of Mechanicville, 195 App. Div. 268.)
I therefore dissent and vote for affirmance.
All concur, except McCtntN, P. J., who dissents and votes for affirmance in a separate opinion. Present — McCtjbN, P. J., VattghaN, Kimball, Williams and Bastow, JJ.Order reversed on the law, without costs of this appeal to either party and motion granted, without costs.