(dissenting). Plaintiff, a school teacher, boarded defendants’ train at Lindenhurst, Long Island. Her destination was nearby Bayshore, two stops away. When the conductor reqnested she pay the fare, plaintiff discovered that she had only $1.05 in her pocketbook; the fare was $1.45.. Plaintiff offered to remit the 40 cent balance and also tendered a New York City token valued at 35 cents. If the token had been accepted, she would have been 5 cents short of the fare. Her offers were refused. Her protestations of any willful intent to cheat the railroad fell on deaf ears. When the train reached the Babylon station defendants ’ conductor locked the doors preventing plaintiff from leaving. The police, acting on the conductor’s complaint, arrested plaintiff charging her with theft of services. Unable to make bail, plaintiff was kept in jail until the following morning when, handcuffed, she was transported to court for arraignment, together with the other desperate criminals rounded up the previous evening. After having acted in such a high-handed and inhumane manner toward one of its passengers, defendants did not even bother to. appear in court, whereupon the case was promptly and properly dismissed. No other action was taken by the railroad in pursuit of its 40 cents. This suit followed.
Special Term was more than justified in holding the notice of claim to have been properly and timely served and the exercise of its discretion should not be disturbed. Recently in Matter of Murray v. City of New York (30 NY 2d 113, 119) Judge Scileppi, writing for a unanimous court said: “ Where satisfied *227that the court has acted within the perimeters of reason, we have consistently affirmed the exercise of discretion whether it has been invoked to sustain or deny grants of permission for late filing (citing cases).”
The law is firmly established that an appellate court should not interfere with “ the sound discretion of the Court” in a determination on a question of permitting a late notice of claim. The Court of Appeals so held in Matter of Murray v. City of New York (supra). (See, also, Matter of Pahdoliano v. New York City Tr. Auth., 17 A D 2d 951; Matter of Goglas v. New York City Housing Auth., 13 A D 2d 939, affd. 11 N Y 2d 680.)
The rank injustice that will result if plaintiff is turned away without her day in court is clearly manifest. The majority, instead of applying the law as it is and allowing the litigation to be determined on the merits, is turning plaintiff out of court by strained application of legal principles not here relevant nor applicable. My brethren are resorting to the law’s primitive stage of formalism when the precise word was the sovereign talisman and every slip was fatal. The defendants had notice of plaintiff’s claim. Indeed, it was the defendants’ employee’s conduct that gave rise to the cause of action.
Defendant Long Island Railroad is a private stock corporation. It serves no governmental function and is totally lacking in social goals. If it is to be the beneficiary of a short 90-day notice limitation period, the courts should be vested with the discretionary power to relieve claimants from nonprejudicial irregularity, mistake, etc. Without this safeguard, in my opinion, the 90-day limitation is unconstitutional. But the constitutional issue aside, Special Term, in a clear and well-reasoned opinion, upheld the timeliness of the notice. In so doing, Special Term correctly applied and followed well established principles of law. To disturb the order appealed from is to do a manifest and most grievous injustice. I would affirm.
Murphy, Lane, Tilzer and Capozzoli, JJ., concur in Per Curiam opinion; Nunez, J. P., dissents in an opinion.
Order, Supreme Court, New York County, entered on May 21, 1973, reversed, on the law, plaintiff’s motion to dismiss the affirmative defenses denied, and the defendants’ cross motion for summary judgment dismissing the complaint granted, and the complaint dismissed, without costs and without disbursements.