Petitioners, father and infant son, appeal from
the order of Special Term denying their application under subdivision 5 of section 50-e of the General Municipal Law for permission to file late notice of claims.
It is alleged that on October 20, 1971 William Grume, then nine years of age, was injured because of the negligence of1 the respondent School District. It appears that the infant’s father retained an attorney to handle both the infant’s and the father’s claims for damages arising from those injuries, and on October 26, 1971 the attorney wrote a letter to the principal of the Park Elementary School, where the infant was injured, advising of the child’s injury and that the attorney was representing him and the father in making claims against the school for damages by reason of those injuries. The attorney failed to serve a notice of claims as required under secton 50-e of the General Municipal Law. Two or three days after the accident the school nurse called the infant’s parents about his absence from school and was told about the injuries. On November 4, 1971 respondent school district filed a report of the accident ■with its insurance carrier; and on November 18 a representative of the insurance carrier talked with petitioners’ attorney about the claims of negligence, in light of respondent’s accident report. In April, 1972, over five months after the accident, petitioners
*494instituted this proceeding, returnable on April 25, 1972, for permission to file late notice of claims. It appears that the application was not heard until September 5,1972, and the order denying it was entered on October 16,1972. Special Term seems to have rested its decision upon Matter of Murray v. City of New York (30 N Y 2D 113), inferring therefrom that the determination lay in its own discretion.
Subdivision 5 of section 50-e of the General Municipal Law provides in part, “ The ¡court, in its discretion, may grant leave to serve a notice of claim within a reasonable time after the expiration ¡of the time specified in subdivision one of this section in the following cases: (1) -Where the claimant is an infant, or is mentally ¡or physically incapacitated, and by reason of such disability fails to serve a notice of claim within the time specified ’ ’. In view of the facts that the father had retained an attorney to represent himself and the infant with respect to the claims arising* from such injuries and that it was the attorney’s default which resulted in the failure ,of the infant to file a timely notice of claim, the question in this case is whether the failure to file within the statutory period was by reason of the infancy disability.
This question has been considered in all four of the Judicial Departments of this State. Prior to Matter of Murray v. City of New York (30 N Y 2d 113, supra) the First Department generally held that when an attorney had been retained in behalf of the infant before the expiration of the time for filing notice of claim, the failure to file in due time was not related to infancy (Santiago v. Board of Educ. of City of N. Y., 41 A D 2d 616; and see Matter of Murray v. City of New York, 30 N Y 2d 113, 116-117, supra). Since Murray, however, the First Department has held -that in the case of a young infant the fact of infancy alone may raise a presumption that the failure to file was by reason of the infancy (Matter of Potter v. Board of Educ. of City of N. Y., 43 A D 2d 248). For years the other three departments have generally held that in these circumstances the failure to file would be presumed to be by reason of1 the infancy (see Second Department: Matter of Spencer v. New York City Tr. Auth., 39 A;D 2d 581 and Matter of PandolAano v. New York City Tr. Auth., 17 A D 2d 951; Third Department : Lampman v. Cairo Cent. School Dist., 40 A D 2d 734; Matter of Brooks v. Rensselaer County, 34 A D 2d 708; and Fourth Department: Matter of Crugnale v. City of Niagara Falls, 40 A D 2d 626; Matter of Reynolds v. Greece Cent. School Dist., 36 A D 2d 1020; Chao v. Westhill Cent. School Dist., 35 *495A D 2d 1071; Matter of Perry ,v. Board of Educ. of City of Lackawanna, 34 A D 2d 1089; Matter of Andrsejewski v. Board of Co-op. Educational Servs., 34 A D 2d 881).
We note, especially, that the infant in the instant case did not participate in the selection of1 an attorney to present his claim, and were it not for infancy he might have retained an attorney who would have filed notice of- claim within due time. Under the -statute there is no reason to charge this young infant with the act of his parent. Clearly, had no attorney represented the infant in this case prior to his application for an order permitting late filing -of claim, the statute would authorize the court to grant the application (Matter of Tashjian v. Central School List. No. 5, 38 A D 2d 1006; Platter of Ridley v. New York City Tr. Auth., 38 A D 2d 973).
Thus, it has long -been the holding in this Department -that where an attorney was timely employed to represent a young infant but failed to file notice of claim within the statutory period provided therefor, there was “ a cognizable relation between the infancy and the failure to file a notice within 90 days (Matter of Andrsejewski v. Board of Co-op. Educational Servs., 34 A D 2d 881, supra).
In Matter of Murray v. 'City of New York (30 N T 2d 113, 119-120, supra) the court unanimously -held that the foregoing is a permissible and reasonable interpretation of the statute as applied to such facts. The holding was largely based upon the concept that the scope of the reviewing power of the Court of Appeals is limited to questions of law, and that the interpretation of facts under the statute is within the -sound discretion of the respective Appellate Divisions. Special Term’s interpretation of Murray (supra), as placing the exercise of such discretion in it, is only partially correct. If each Special Term were at liberty to place its own interpretation upon -the statute as applied to a given state of facts, without regard to prior determinations of this court, inconsistent Special Term holdings on similar facts might well result, and uniform decisions, so essential to the proper administration of justice, would be imperiled. Thus, the ultimate discretion in these cases must be exercised by the Appellate Division (Matter of Stowe v. City of Elmira, 31N T 2d 814; Matter of Murray v. City of New York, supra; Matter of Biberias v. New York City Tr. Auth., 27 N Y 2d 890).
Since this court has an established policy in this line of cases, Special Term -was not at liberty to -make a decision contrary thereto. The order, therefore, should be reversed insofar as *496it denies the infant’s application to file a late notice of claim, and the infant’s application should be granted, and otherwise the order should be affirmed (see Matter of Tashjian v. Central School Dist. No. 5, 38 A D -2d 1006, supra; Matter of Ridley v. New York City Tr. Auth., 38 A D 2d 973, supra; Matter of Andrzejewski v. Board of Co-op. Educational Servs., 34 A D 2d 881, supra), without costs.
For years the Association .of Supreme Court Justices of the State of New York has made unsuccessful efforts to secure corrective legislation with respect to this problem under section 50-e of the General Municipal Law. We join with the concurring opinion of Judge Breitel of the Court of Appeals (Matter of Murray v. City of New York, supra, p. 121) in urging that the Legislature give prompt attention to ameliorating the harsh implications of this statute.