Martin v. School Board of Union Free District No. 28

Desmond, J.

In 1945 (L. 1945, ch. 694) to put an end to much conflict and confusion in the statutory and decisional law applicable to notices of claim against public corporations, the Legislature enacted section 50-e of the General Municipal Law. That statute was intended to revise completely, and to set up in one section, the whole of the law on the subject. In its first three subdivisions, it enacts that, whenever, in a tort case, a notice of claim is required by law as a condition precedent to the commencement of a suit or proceeding against a public corporation, or officer or employee thereof, the notice shall comply with the new section, shall be given within sixty days after the claim arises, shall set forth certain detailed information, and must be served on a person to whom a summons may be delivered. Subdivisions 4, 6 and 7 need not be discussed herein.

Subdivision 5, with which we are concerned on this appeal, confers on the court a limited, and discretionary power, to relieve against failure, under certain circumstances, to file a notice of claim in time. That subdivision, complete in itself, is in full as, follows:

“5. 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 as provided in the foregoing subdivisions of this section within the time limited therefor, or where a person entitled to make a claim dies before the expiration of the time limited for service of the notice, the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one.

“ Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim. The application shall be made returnable at a trial or special term of the supreme court, or of the county court, in the county where an action on the claim could properly be brought for trial, and due notice thereof shall be served upon the person or party against whom the claim is made, in the manner specified in subdivision three. ’ ’

Nineteen months after an alleged tortious injury to his daughter, who was twelve years old at the time of the accident, this proceeding was brought by the father to obtain an order permitting the service of a claim on respondent school board, mine pro tune. The petition, to explain the delay, says that the school board’s insurance carrier investigated the matter and promised to adjust the claim but delayed and misled petitioner until the statutory period of a year had elapsed, then refused to pay. Special Term denied the application on the ground that the. court was totally without discretion, under subdivision 5 of section 50-e, above quoted, to grant any such relief, since proceedings therefor had not been begun within a year after the event on which the claim is based. The Appellate Division affirmed but granted leave to petitioner to appeal to this court. We think there is no escape from the conclusion reached by the courts below.

Until the passage of section 50-e there were two well-known defects, or kinds of defects, in the law of New York as to filing notices of claims against municipal and other public corporations. First, there was no uniformity in the numerous special statutes applicable to various municipalities. Second, there was confusion and technicality galore in the court decisions. The Judicial Council, therefore, proceeded to deal with the subject, by way of study, report and recommendations to the Legislature. Its proposal, made in 1943, and later partly adopted and partly rejected by the Legislature as we shall see, was prefaced by this introductory statement: “The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property. It is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surrounding the alleged claim are still ‘ fresh ’. On the other hand, ‘ these provisions (notice statutes) were not intended as a trap for the unwary and the ignorant. ’ An examination of the decisional law, however, indicates that far too often technicalities in this field have prevented the disposition of honest claims on their merits.” (Tenth Annual Report of N. Y. Judicial Council, 1944, p. 265, inner quotations from 17 Corn. L. Q. 687, 689 [1932].)

To remedy those defects, the Judicial Council sent to the Legislature a proposed new section 50-e, which, however, differed in many ways from the statute actually passed, two years later. The 1943 Council proposal (Tenth Annual Report, pp. 265-267) required filing within ninety days, but, as to claims not filed on time, it made a suggestion which the Legislature completely rejected. That recommendation (found in subdivisions 1 and 4 of the Judicial Council’s proposed section 50-e) would have extended the time for filing, in the case of a claimant who was an immature infant, or mentally or physically incapacitated, until a reasonable time after the cessation of the disability, even though more than ninety days after the tort, and would have provided further amelioration for any tardy claimant by authorizing the court in its discretion, and under certain circumstances, to grant leave, on application by motion made at any time before trial, for service of the notice of claim within a reasonable time after the end of the prescribed ninety days. Significant is the Judicial Council’s discussion (Tenth Annual Report, p. 269) of its recommendation that immature infants, and persons mentally or physically incapacitated, be allowed a reasonable time, after disability’s end for filing. The council, pointed out that “ existing notice provisions in New York do not include an exception in favor of a claimant who is under a legal disability ”, but, citing Murphy v. Village of Fort Edward (213 N. Y. 397 [1915]) and Russo v. City of New York (258 N. Y. 344 [1932]) pointed out, also, that the New York courts had been “ liberal in the construction of these provisions ” and had “ sustained a notice given within a reasonable time after the disability ceases, although the prescribed period for notice has expired.” The Legislature was thus reminded: first, that none of the existing statutes made specific exceptions because of disability; and, second, that the courts, finding in those statutes neither authorization for, or prohibition against, such favors, had granted to disabled persons extensions of time for filing.

If the Legislature had seen fit to pass the Council’s hill as originally proposed, the .present claimant would be in a position to ask for relief. But the Legislature, did something, .quite-different, as present section 50-e shows on its face, and as the Judicial Council explained in its Eleventh and Twelfth Annual Reports'. The Eleventh Report (pp. 51-52), submitted early in 1945, recounts that the Council’s proposed bill had been introduced in 1943 and 1944, but not passed, and that a “ compromise bill” had been prepared, introduced and reported out by the Assembly Judiciary Committee in 1944, but had been recommitted because of errors of form and because certain municipalities asked for opportunity to study the matter further. That “ compromise bill ”, with some changes as to the number of days allowed for certain procedures, was enacted in 1945 and is the present section 50-e. The Judicial Council’s Eleventh Annual Report (p. .52) clearly states —as is indeed apparent from the most cursory comparison — that the Council’s proposal that immature infants and others disabled be permitted to file after the end. of disability, had been dropped from the compromise bill. Instead, as the Council reported, the compromise bill “ provided that the court may use its discretion to extend the time for filing when an infant or person mentally or physically incapacitated is concerned, on condition that application f.or such leave is made within six. months, [one year as actually later enacted] from the date of the .accrual of the claim.” The Council’s Twelfth, or 1946, Report (pp. .21-23) setting out in-full, and commenting on, section 50-e as finally enacted in 1945, again makes it clear that the new law was “ the result of a compromise ”, and points out that the new law demands filing within sixty days ‘‘ with certain exceptions that may, under some circumstances, extend the period up to one year (subd. 5).”

This history of the gestation and:birth of this statute, seems necessary by reason of contentions now made that, despite the statute’s plain language, and despite its specific provisions as to infants and others under disability, nevertheless, so we are told, it is still the law that, long after the end of the one-year period limited by subdivision 5 of section 50-e, a court may still permit late filing, by an infant! The short answer is that the Legislature has seen'fit to deny such a power to the court, and that the Legislature had the undoubted right so to do (Winter v. City of Niagara Falls, 190 N. Y. 198, 203).

References to the cases, such as Murphy v. Village of Fort Edward (213 N. Y. 397) and Russo v. City of New York (258 N. Y. 344, supra) decided before section 50-e became the law, are helpful only to show what the law was before September 1,1945. The Legislature, which was, actually as well as theoretically, familiar with those decisions, and which had before it the Judicial Council’s recommendation that those decisional rules be made statutory, nevertheless, deliberately, and after delay, consideration and compromise, made new and entirely different law on the subject. Wise or unwise, fair or harsh, that law is as binding on the courts as it is on this petitioner and on everyone else.

The maxim or rule of construction‘‘ that the law does not seek to compel a man to do that which he cannot possibly perform ’ ’ (Broom’s Legal Maxims [4th ed.], cited in Walden v. City of Jamestown, 178 N. Y. 213, 217) is sometimes helpful in determining legislative intent, when that intent is in doubt. There is no such doubt here. Furthermore, as to what is or is not possible, it is to be presumed that the Legislature knew, as we all know, that it is not ordinarily impossible for an immature infant, or other disabled person, to have claims filed and suits brought in his behalf. Out of that general knowledge the Legislature fashioned a general law, and we cannot write into it exceptions which the Legislature designedly omitted.

The order should be affirmed, with costs.