Opinion
Argued October 6, 1952
Decided October 16, 1952
Appeal from the Supreme Court, Appellate Division, Second Department, FLANNERY, J.
John L. Class for appellant. J. Raymond Hannon, Corporation Counsel ( John Preston Phillips of counsel), for respondents.
Appellant, a teacher in Longfellow Junior High School of Yonkers, aged fifty-two years, claims that on September 8, 1950, as she walked across the front of her classroom, she fell, due to the negligence of respondents in creating a dangerous and unsafe condition. In consequence thereof she sustained, as Special Term found, a fracture of the skull and a severe concussion of the brain involving serious brain damage, resulting in double vision, numbness and facial paralysis, impaired memory and inability to concentrate. A physician, in the employ of defendant board, did not note the fracture, and indeed did not think her condition was serious, though he conceded claimant's "memory wasn't too certain at that time." Two or three weeks later, her true injuries were discovered by other physicians after X rays were taken and a spinal tap was made. She was then confined to a hospital for nearly six weeks and to a convalescent home for nearly four weeks.
In this proceeding under section 50-e of the General Municipal Law, for permission to serve a proposed notice of claim and intention to sue after the expiration of the ninety-day period, Special Term at first stated it would grant the application "unless respondent stipulates to pay all reasonable expense of the production of petitioner's witnesses" before an Official Referee. Having so stipulated, the matter was referred to an Official Referee to hear and report. Upon the coming in of said report, in which the Referee stated that neither on the facts nor on the law can it be held that petitioner's failure to serve the required notice within the ninety-day period was due "solely" to her disability, Special Term made findings — which have support in the record — quite different from and at variance with those made by the Official Referee. Nevertheless, instead of exercising its own discretion in the light of its own contrary findings, the court deferred to the recommendation of the Official Referee, based on findings with which the court disagreed.
A majority of the Appellate Division, in affirming without opinion, did not disturb the findings of Special Term; the minority voted for reversal and the granting of claimant's application.
The Referee's report was of course in no way binding upon Special Term but was merely "to inform the conscience of the court" ( Bannon v. Bannon, 270 N.Y. 484, 493). The discretion should be exercised by the court itself (§ 50-e, subd. 5).
The orders should be reversed, with costs in all courts to abide the event, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Orders reversed, etc.