Joseph v. McVeigh ( 1955 )

Breitel, J.

(concurring). While I agree with the bulk of the analysis and, of course, in the conclusion contained in the opinion of Mr. Justice Callahan, I believe that the problem presented by this case is resolved in a simpler way. As pointed out, it is significant that section 50-e of the General Municipal Law refers to a claim rather than to a cause of action. The Winbush case (306 N. Y. 327) merely held that the 'cause of action for wrongful death arises at the time of death and that a next of kin was entitled to file a ‘ ‘ notice of claim ’ ’ within the ninety-day period. A personal representative, however, could not file a notice of claim until appointed and qualified. Hence the accrual of the right to file the notice of claim does not start until the appointment and qualification. Put another way, a claim, as distinguished from the notice of claim, requires not only the gravamen of a cause of action, but also a person with capacity to prosecute. The statute evidently makes this or a parallel distinction because it contains a further limitation, in another connection, it is true, that in no event may the notice of claim be filed more than one year “ after the happening of the event upon which the claim is based ”. In this view, neither the holding nor the reasoning in the Winbush case {supra) offers any difficulty, and indeed, supports the conclusion reached in this case.

Cohn, J. P., Botein and Rabin, JJ., concur with Callahan, J.; Breitel, J., concurs in separate opinion.

Order unanimously modified by granting the motion to strike the defense solely as to the second cause of action and, as so modified, affirmed. Settle order. [See post, p. 941.]