Opinion
October 31, 1945.
Samuel L. Bienenfeld for plaintiff.
Ignatius M. Wilkinson, Corporation Counsel ( Sidney B. Fisher of counsel), for defendant.
Upon the foregoing papers this motion by plaintiff for leave to serve an amended notice of intention to sue on the ground that in the notice heretofore served on December 26, 1944, the number of the trolley car was mistakenly stated as 5060 whereas the true number was 6050; sufficient appears in the moving papers to explain this mistake. In the court's opinion subdivision 6 of section 50-e of the General Municipal Law (as added by L. 1945, ch. 694) authorizes an order to effect the amendment sought; the statute is remedial "to rectify the frequent and often gross injustices by which defects in form have prevented consideration of claims against municipal corporations on their merits." (Tenth Annual Report of N.Y. Judicial Council, 1944, p. 44; see, also, Eleventh Annual Report of N.Y. Judicial Council, 1945, p. 51.) Certainly the defendant cannot argue, nor does it, that the amendment sought will prejudice it in the least.
This subdivision provides in part: "a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded * * * in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby." — [REP.
Section 13 of chapter 694 of the Laws of 1945 provides: "The provisions of section fifty-e of the general municipal law, as added by this act, shall supersede inconsistent provisions of any general, special or local law, or charter provisions, and shall be controlling." Section 14 thereof provides: "This act shall take effect September first, nineteen hundred forty-five, and shall apply to claims against public corporations, as defined in the general corporation law, and their officers, appointees and employees, which were not barred by applicable statutory or case law in force prior to September first, nineteen hundred forty-five, but the periods now limited for the delivery of a notice of claim shall apply to all claims which arise prior to that date." — [REP.
Motion in all respects granted; the amended notice of intention to sue and the amended complaint setting forth the trolley car number as 6050 instead of 5060 to be served within six days after publication hereof in the New York Law Journal.