Kosiba v. City of Syracuse

260 A.D. 557, 24 N.Y.S.2d 37, 1940 N.Y. App. Div. LEXIS 4653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1940
• Status: Published

Opinions

Per Curiam.

Ordinarily a municipal corporation cannot be sued for damages arising from the negligence of its officers and agents while in the discharge of their duties unless it consents to be sued pursuant to legislative enactment. By section 244 of the Second Class Cities Law certain municipal governments consent to be sued for damages arising out of certain torts of their agents, officers or employees. Municipal corporations, however, never consented to accept liability for the negligence of their agents, officers, employees or appointees committed while in the discharge of purely governmental functions until the enactment of section 50-c of the General Municipal Law and that section gives no cause of action against the municipality itself for such torts. Section 50-c merely requires the municipality to indemnify its appointee against any liability he might incur arising from his negligence while engaged in the performance of a governmental function imposed upon the municipality. The defense of “ governmental function ” is not now and never has been available to the appointee of a municipality. The city was properly joined as a defendant since, in the event of a recovery against its appointee and codefendant herein, it would be liable over to him. (Gen. Municipal Law, § 50-c; Civ. Prac. Act, § 193.) The fact that the city may be liable over to its appointee is not to be construed as meaning that the city has consented to be sued in this or similar actions. The city is not liable over to its appointee unless the injured party shall serve on the appointee and on the city, thirty days before action is instituted, the written notices required to be given and served under section 50-c of the General Municipal Law. The plaintiff failed to serve upon the defendants the written notices as required by that section. Moreover, service of the notices as required by section 50-c was a condition precedent to the maintenance of this action to be pleaded and proved by the plaintiff. Service of such notice was not made on the defendant appointee until the summons was served on him. The notice was never served on the defendant city. The plaintiff served the notices on the defendant city provided for in section 244 of the Second Class Cities Law. Even if we should hold that the service of the notices, prescribed by section 244, on the city was a substantial compliance with section 50-c, the failure to serve the notice, as required by section 50-c, on the defendant appointee is nevertheless fatal to a recovery and prevents the maintenance of this action against either defendant.

All concur, except Harris, J., who concurs in so far as the dismissal as to defendant Luebberman is concerned but dissents and votes for affirmance as to the defendant City of Syracuse, in an opinion. Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.