This is a claim for damages resulting from the death of Sidney L. Blauvelt, claimant’s intestate, at the New York State Hospital for the Insane, Buffalo, N. Y., on January 27, 1932, as a result of injuries received from an assault by another inmate of the institution.
Under section 12 of the Court of Claims Act, as it existed at the time this claim accrued, this court was given jurisdiction to hear and determine “ a claim of an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the State by which the decedent’s death was caused, which shall *320have accrued within two years before the filing of such claim and the State hereby consents, in all such claims, to have its liability determined.”
Under section 12-a of the Court of Claims Act, as it existed when this claim arose, the court was given jurisdiction to hear and determine claims “ to recover damages for injuries to property or for personal injury caused by the misfeasance or negligence of the officers or employees of the State while acting as such officer or employee.”
It was also provided in said section: “ That no action shall be maintained against the State for damages or injuries pursuant to this section unless a written claim or a written notice of intention to file a claim * * * shall be served * * * within sixty days
after the alleged injury occurred nor unless the claim shall be filed thereon within two years after the happening of the event which caused the injury.”
At the time this claim arose it was provided by section 15 of the Court of Claims Act that a claim other than for the appropriation of land could not be maintained unless the claimant within six months after the claim accrued filed in the office of the Court of claims and with the Attorney-General, “ either a written claim or a written notice of intention to file a claim against the State stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.”
The decedent died on January 27, 1932. The notice of intention was filed in the office of the clerk of the Court of Claims on March 26. 1932. The notice of intention was served upon the Attorney-General and the Department of Public Works on March 28, 1932.
The claim was filed in the office of the clerk of the Court of Claims on January 27, 1934, and copies thereof served upon the Attorney-General on February 2, 1934, and on the Department of Public Works on the same day. Claimant on March 28, 1932, was appointed administratrix of the estate of decedent. It appears, therefore, that the notice of intention to file a claim herein was filed in the office of the clerk of the Court of Claims two days before claimant was appointed administratrix and obviously was mailed to the Attorney-General and the Department of Public Works before such appointment. The notice of intention to file a claim as appears from the copy attached to the claim was verified on March 25, 1932.
*321In Boffe v. Consolidated Tel. & El. Subway Co. (171 App. Div. 392; affd., 226 N. Y. 654) it was held in an action to recover damages for negligence causing death, that the action was wholly statutory and as it could only be brought by a personal representative of the decedent, an action brought before the appointment of a representative was premature and the complaint was dismissed. To the same effect is Smith v. New York Central Railroad Co. (183 App. Div. 478). The same rule applies here, as a proceeding in this court must be instituted by the filing of a claim or notice of intention to file a claim within the time prescribed by the statute. The claim itself was filed by claimant after her appointment but was not filed within the period provided by either section 12-a or section 15 of the Court of Claims Act.
At the conclusion of claimant’s case the State moved to dismiss the claim upon the ground that claimant had failed to prove a cause of action against the State. Decision on that motion was reserved. The motion is granted and an order may be submitted accordingly.
Greenberg, J., concurs; Ackerson, J., dissents.*
Dissenting opinion rendered August 10, 1936.