Habéis, J.
On August 25, 1941, while he was a passenger in an automobile which was traveling on a county highway in the County of Oneida, the plaintiff’s intestate, then a youth of fourteen years, met his death through an accident. The accident came about through the automobile’s leaving the road and hitting a tree which was located near the road. The plaintiff-respondent here in his complaint claims that such accident occurred because of the negligent construction and maintenance of such highway. The defendant-appellant, the County of Oneida, moved below for dismissal of the complaint and such motion was denied at Special Term. (Hawkins v. Oneida County, 38 N. Y. S. 2d 844.) Review of this order of the Special Term is sought here.
The ground for the motion to dismiss the complaint and the reason advanced for reversal are that a notice of claim and of intention to sue should have been served on the county clerk or on the chairman of the hoard of supervisors of the defendant county, in accordance with the provisions of section 6 of the County Law. The plaintiff-respondent, in serving such notice of claim and of intention to sue the county, made service on the clerk of the hoard of supervisors and on the county attorney. (County Law, § 6-a.) The sole question before us is whether the service as made by the plaintiff-respondent is sufficient to sustain the complaint herein, or whether service not having been made in accordance with the provisions of section 6 of the County Law the plaintiff-respondent has lost any right to sue the defendant county.
[549] At the time of the accident and death of the plaintiff’s intestate, the two sections of the County Law under discussion read, and now read (so far as is pertinent here) as follows:
Section 6. 1 ‘ When, by law, a county has charge of the repair or maintenance of a road, highway, * * * the county shall be liable for injuries to person or property sustained in consequence of such road, highway, * * * being defective, out of repair, unsafe, dangerous or obstructed existing because of the negligence of the county, its officers, agents or servants. A civil action may be maintained against the county to recover damages for any such injury; but the county shall not be liable in such adtion unless a written claim for such damages, verified * * * shall within three months after the happening of the accident or injury or the occurrence of the act, omission, fault or neglect out of which or on account of which the claim arose, be served upon the county clerk or chairman of the board of supervisors, and the action is commenced within one year after such damages or injuries were sustained, but no such action shall be commenced upon such claim until the expiration of three months after the service of such claim or a copy thereof. * * ®.”
Section 6-a. “ Any claim against the county, not specified in section six of this chapter, for damages for death or for injury to person or property, invasion of personal or property rights of every name and nature whatsoever, * * * and any other claim for damages for death or injury to person or property, arising at law or in equity and enforceable or sought to be enforced at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, negligence, omission of duty, wrongful act; fault or neglect on the part of a county or any of its agents, officers or employees, must be presented in writing to the clerk of the board of supervisors of the county and to the county attorney, if any, within three months after such damages or injury to person or property were sustained. " ® * If it is intended to commence an action on such claim against the county, notice of such intention, containing the amount demanded and the time and place of the injury must also be served on the county attorney of the county, if any, or if there be no county attorney in such county, upon the clerk of the board of supervisors, within three months after such damages or injuries were sustained.”
The complaint contains no allegation that any notice of claim or intention to sue whatsoever was served or filed. Failure to so plead ordinarily would make the complaint subject to attack* [550] for insufficiency. (Reining v. City of Buffalo, 102 N. Y. 308, 310; Winter v. City of Niagara Falls, 190 N. Y. 198,202; MacMullen v. City of Middletown, 187 N. Y. 37; Kaplan v. City of Poughkeepsie, 279 N. Y. 153.) But that ground of attack was not raised below, nor is it raised here, so it is not considered in the disposition of this appeal.
To consider the question before us we turn to the origin, history and contents of the two sections of the County Law to which reference has been made above. Section 6 was added to the County Law by the Laws of 1917 (ch. 578), and the original section 6-a by the Laws of 1931 (ch. 220). Section 6 is headed “ County liable for injuries caused by defective highways and bridges.” The original section 6-a was headed “ Presentation of claims for injury to person or property.” By the Laws of 1936 (ch. 865), section 6-a was repealed and “ in place thereof ” was adopted the present section 6-a, which is headed “ Presentation of certain other claims.” It is to be noted that in section 6 is the following: “ * * * the county shall be liable for injuries to person or property sustained in consequence of such road, highway, .* * * being defective, out of repair, unsafe, dangerous or obstructed * * *. A civil action may be maintained-against the county to recover damages for any such injury; * * * ” and in section 6-a is the following: ‘ ‘ Any claim against the county, not specified in section six of this chapter, for damages for death or for injury to person or property, * * *.”
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Habéis, J.
On August 25, 1941, while he was a passenger in an automobile which was traveling on a county highway in the County of Oneida, the plaintiff’s intestate, then a youth of fourteen years, met his death through an accident. The accident came about through the automobile’s leaving the road and hitting a tree which was located near the road. The plaintiff-respondent here in his complaint claims that such accident occurred because of the negligent construction and maintenance of such highway. The defendant-appellant, the County of Oneida, moved below for dismissal of the complaint and such motion was denied at Special Term. (Hawkins v. Oneida County, 38 N. Y. S. 2d 844.) Review of this order of the Special Term is sought here.
The ground for the motion to dismiss the complaint and the reason advanced for reversal are that a notice of claim and of intention to sue should have been served on the county clerk or on the chairman of the hoard of supervisors of the defendant county, in accordance with the provisions of section 6 of the County Law. The plaintiff-respondent, in serving such notice of claim and of intention to sue the county, made service on the clerk of the hoard of supervisors and on the county attorney. (County Law, § 6-a.) The sole question before us is whether the service as made by the plaintiff-respondent is sufficient to sustain the complaint herein, or whether service not having been made in accordance with the provisions of section 6 of the County Law the plaintiff-respondent has lost any right to sue the defendant county.
[549] At the time of the accident and death of the plaintiff’s intestate, the two sections of the County Law under discussion read, and now read (so far as is pertinent here) as follows:
Section 6. 1 ‘ When, by law, a county has charge of the repair or maintenance of a road, highway, * * * the county shall be liable for injuries to person or property sustained in consequence of such road, highway, * * * being defective, out of repair, unsafe, dangerous or obstructed existing because of the negligence of the county, its officers, agents or servants. A civil action may be maintained against the county to recover damages for any such injury; but the county shall not be liable in such adtion unless a written claim for such damages, verified * * * shall within three months after the happening of the accident or injury or the occurrence of the act, omission, fault or neglect out of which or on account of which the claim arose, be served upon the county clerk or chairman of the board of supervisors, and the action is commenced within one year after such damages or injuries were sustained, but no such action shall be commenced upon such claim until the expiration of three months after the service of such claim or a copy thereof. * * ®.”
Section 6-a. “ Any claim against the county, not specified in section six of this chapter, for damages for death or for injury to person or property, invasion of personal or property rights of every name and nature whatsoever, * * * and any other claim for damages for death or injury to person or property, arising at law or in equity and enforceable or sought to be enforced at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, negligence, omission of duty, wrongful act; fault or neglect on the part of a county or any of its agents, officers or employees, must be presented in writing to the clerk of the board of supervisors of the county and to the county attorney, if any, within three months after such damages or injury to person or property were sustained. " ® * If it is intended to commence an action on such claim against the county, notice of such intention, containing the amount demanded and the time and place of the injury must also be served on the county attorney of the county, if any, or if there be no county attorney in such county, upon the clerk of the board of supervisors, within three months after such damages or injuries were sustained.”
The complaint contains no allegation that any notice of claim or intention to sue whatsoever was served or filed. Failure to so plead ordinarily would make the complaint subject to attack* [550] for insufficiency. (Reining v. City of Buffalo, 102 N. Y. 308, 310; Winter v. City of Niagara Falls, 190 N. Y. 198,202; MacMullen v. City of Middletown, 187 N. Y. 37; Kaplan v. City of Poughkeepsie, 279 N. Y. 153.) But that ground of attack was not raised below, nor is it raised here, so it is not considered in the disposition of this appeal.
To consider the question before us we turn to the origin, history and contents of the two sections of the County Law to which reference has been made above. Section 6 was added to the County Law by the Laws of 1917 (ch. 578), and the original section 6-a by the Laws of 1931 (ch. 220). Section 6 is headed “ County liable for injuries caused by defective highways and bridges.” The original section 6-a was headed “ Presentation of claims for injury to person or property.” By the Laws of 1936 (ch. 865), section 6-a was repealed and “ in place thereof ” was adopted the present section 6-a, which is headed “ Presentation of certain other claims.” It is to be noted that in section 6 is the following: “ * * * the county shall be liable for injuries to person or property sustained in consequence of such road, highway, .* * * being defective, out of repair, unsafe, dangerous or obstructed * * *. A civil action may be maintained-against the county to recover damages for any such injury; * * * ” and in section 6-a is the following: ‘ ‘ Any claim against the county, not specified in section six of this chapter, for damages for death or for injury to person or property, * * *.”
Does the use of the words “ not specified ” in section 6-a serve to bring within section 6-a only suits for damages not due to highway defects, or does such use of the words “ not specified ” go further and draw attention to the fact that sec-, tion 6 does not specifically mention losses coming from death í The purpose of the enactment of section 6-a was to set forth the procedure available to those having a cause of action not specified in section 6, because of wrongs attributed to a county. The very contents of section 6-a in its original enactment show the intention of the Legislature that the enactment ■ of the statute was remedial legislation. A remedial statute in derogation of the common law is to be given its full purpose, but it is to be strictly construed. (Nelson v. Board of Higher Education, 288 N. Y. 649; Transit Commission v. Long Island R. R. Co., 253 N. Y. 345; Westchester County S. P. C. A. v. Mengel, 266 App Div. 151.) As death claims are not specifically specified in section 6, it is fair to assume that in using the words “ not specified ” the Legislature intended that section [551]*5516-a cover death claims whether arising from highway accidents or defects or from some other cause. (Matter of Kaplan v. Peyser, 273 N. Y. 147, 149-150; People ex rel. Powott Corp. v. Woodworth, 260 App. Div. 168, 172; Bishop v. Chicago Rys. Co., 303 Ill. 273; in reference to the use of the word “ specified”, see dissenting opinion of Kellogg, J., in Davis v. Cayuga Operating Co., 217 App. Div. 675.) Section 6 and section 6-a are to he construed together, so that both may operate in harmony (Matter of Kaplan v. Peyser, 273 N. Y. 147,149-150) and afford additional evidence of the trend of the waiver of immunity by the State for its subdivisions, the qpunties. The boundaries of such waiver of immunity are ever-widening. (Holmes v. County of Erie, 266 App. Div. 220, affd. 291 N. Y. 798, no opinion.) Suits for damages caused by death by reason of defects in county highways have been based on notices of claim served under section 6. (Khoury v. County of Saratoga 267 N. Y. 384; Williams v. County of Saratoga, 266 App. Div. 431, affd. 291 N. Y. 782.) In Huston v. County of Chenango (278 N. Y. 646) the notice of claim was served on all of the county -officials mentioned in both sections 6 and 6-a. In none of these three cases was the question now under discussion raised. In certain suits against municipalities for damages arising from, death, such suits have been regarded as causes of action for personal injury or for property damage so far as statutes required notices of claim to be served under such statutes (Titman v. Mayor, etc., of New York, 57 Hun 469); but on this question differing opinions are to be found in Crapo v. City of Syracuse (183 N. Y. 395). Basically, the complaint now under review is one brought under the provisions of section 130 of the Decedent Estate Law. (Greco v. Kresge Co., 277 N. Y. 26.) • In deciding the question of the sufficiency of the complaint, which is now before us, wé must give full effect to section 130 of the Decedent Estate Law and any statute which will afford to a suitor the remedy provided in such section 130 of the Decedent Estate Law. No violence to reason nor disregard for precedent occurs if the view is taken that by the enactment of section 6-a and its re-enactment, as it now exists, the Legislature made sure that those seeking damages in death actions (including those due to highway defects or construction) were given the benefit of the waiver of immunity on behalf of the county by the State. This latter expressed thought can be well based on the significant verbiage now heading section 6-a, “ Presentation of certain other claims ”, when one considers the heading of section 6, ‘ ‘ County liable for injuries caused by, [552] defective highways and bridges.” Particularly in point here in so distinguishing “ death from personal injuries ” is the definition of personal injury contained in section 37-a of the General Construction Law, i. e., “ Personal injury. ‘ Personal injury ’ includes libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.”
The Legislature, by the enactment of the original section 6-a and the later enactment of section 6-a as now in force, has given procedure to be pursued by one asserting a claim for death under section 130 of the Decedent Estate Law against a county. We do not say that procedure on a death claim may not be taken under section 6. The court should not limit such remedy by a too narrow construction of the purposes of section 6-a. By a construction of section 6-a which holds that the plaintiff-respondent followed proper procedure in serving the notice of claim and of his intention to sue on the officers named in section 6-a, the present alleged cause of action is saved to the plaintiff. Such construction is in accord with the intent of the Legislature in enacting section 6-a, and the order below should be affirmed, with ten dollars costs and disbursements.