The opinion of Nunez, J. makes out an excellent case for the proposition that hard cases make bad law. The facts are accurately stated but the ultimate conclusion can be supported only by a patent disregard of the statutory language. This unfortunate infant did everything that an adult would have done. His attorney as well could not be charged with any lack of diligence because he failed to discover, within the 90-day period, a possible ground for asserting liability against the city. That is what makes this a hard case. Even if one concurs in the view that section 50-e is a mousetrap in which the necks of otherwise valid claims are broken, it is still the law, and until the courts are empowered to obviate -a statute because it is deemed to be unfair it should be followed. The majority opinion takes issue, in a polite and restrained way, with our contention that- this case marks the final movement in a complete about-face in this Department. In the prior holdings Special Term’s findings that the failure to file a timely claim was in some degree due to infancy was upheld. Though we would not dispute that the affirmances were upon extremely tenuous grounds, this case goes even further and holds that Special Term’s finding that the failure was not due to infancy (a factual finding, not a discretionary one) should be reversed without any showing that the factual finding was erroneous. It is therefore perfectly in order to say that the court now holds that infancy alone excuses a late filing not a late filing attributable to infancy. We hold no brief for section 50-e, only for the proper exercise of judicial discipline. We would dissent and vote to affirm.
Kupeebman and Tilzer, JJ., concur with Nunez, J. P., in separate opinions; Steuer, J., dissents in opinion, in which Murphy, J., concurs.
Order and judgment, Supreme Court, Bronx County, entered on January 4,1974 and February 4,1974, respectively, modified, on the law, the facts and in the exercise of discretion, so as to grant the infant claimant’s application to file a late notice of claim, and otherwise affirmed, without costs and without disbursements.