Christian v. Village of Herkimer

Citation5 N.Y.2d 818,181 N.Y.S.2d 212,155 N.E.2d 122
Parties, 155 N.E.2d 122 Malcolm CHRISTIAN, Appellant, v. VILLAGE OF HERKIMER, Respondent.
Decision Date13 November 1958
CourtNew York Court of Appeals

Appeal from Supreme Court, Appellate Division, Fourth Department, 5 A.D.2d 62, 169 N.Y.S.2d 81.

Pedestrian brought action against village for injuries sustained in fall on sidewalk.

The fall occurred on November 29, 1954, and the statutory period of 90 days provided by Section 50-e of the General Municipal Law, Consol.Laws, c. 24, for filing a notice of claim expired on February 27, 1955. Pedestrian consulted an attorney on June 1, 1955 for purpose of making application for leave to file a late notice of claim, and on July 11, 1955 pedestrian executed an affidavit in support of application for leave to serve late notice of claim, on ground that he had been disabled by the accident. On October 27, 1955, the County Court of Herkimer County, 208 Misc. 814, 148 N.Y.S.2d 384, granted dedestrian permission to serve notice of claim on or before November 15, 1955, and notice was served on October 27, 1955. Pursuant to Section 341 of the Village Law, Consol.Laws, c. 64, the pedestrian had right to commence an action on the claim after expiration of 30 days from date on which notice of claim was served, or on November 27, 1955. On November 18, 1955 the village appealed from the order of the County Court, and the Appellate Division, 2 A.D.2d 648, 151 N.Y.S.2d 629, affirmed the order, and on May 16, 1956 judgment of affirmance was entered in the Herkimer County Clerk's office. On June 12, 1956 the pedestrian served a second notice of claim, followed on July 19, 1956 by service of a summons and complaint. The village served an answer on August 8, 1956, raising affirmative defense that the action was not commenced within statutory period provided by Section 341 of the Village Law, providing that no action shall be maintained against village for personal injury or property damage, unless the action shall be commenced within one year after the cause of action therefor shall have accrued.

The Supreme Court, Special Term, Herkimer County, Eugene F. Sullivan, J., entered an order denying village's motion to dismiss the complaint, and the village appealed.

The Appellate Division, Vaughan, J., reversed the order, dismissed the complaint, and held that the action was barred by limitations. McCurn, P. J., dissented.

The pedestrian appealed to the Court of Appeals, contending that the action was duly and...

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22 cases
  • D'Andrea v. Long Island R. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 1986
    ...30 A.D.2d 282, 284, 291 N.Y.S.2d 403, and Christian v. Village of Herkimer, 5 A.D.2d 62, 64, 169 N.Y.S.2d 81, affd. 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122) and that, where the cause of action is one to recover damages for wrongful death, the right to commence resides solely in an ad......
  • Jastrzebski v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • November 5, 1976
    ...municipality. See Christian v. Village of Herkimer, 5 A.D.2d 62, 169 N.Y.S.2d 81 (App.Div. 4th Dept. 1957), aff'd, 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122 (1958). However, the amendment was designed to remove any uncertainty by increasing by ninety days (the notice period of § 50-e) ......
  • Klein v. City of Yonkers
    • United States
    • New York Court of Appeals Court of Appeals
    • June 9, 1981
    ...until appointment of an estate representative (Christian v. Village of Herkimer, 5 A.D.2d 62, 169 N.Y.S.2d 81, aff'd 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122). Erickson did not define what was meant by the phrase "the happening of the event upon which the claim is based." Rather it no......
  • Dawson v. Langner
    • United States
    • New York Supreme Court — Appellate Division
    • January 29, 1985
    ...supra, p. 284, 391 N.Y.S.2d 403, quoting Christian v. Village of Herkimer, 5 A.D.2d 62, 64, 169 N.Y.S.2d 81, affd. 5 N.Y.2d 818, 181 N.Y.S.2d 212, 155 N.E.2d 122). It is well settled that there is no right to commence an action for wrongful death in the absence of a duly appointed administr......
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