Opinion
Submitted March 18, 1948
Decided April 22, 1948
Appeal from the Supreme Court, Appellate Division, Fourth Department, SEARL, J.
Pirnie Pritchard for appellant. James M. O'Hara and Francis J. Alder for respondent.
An action against a county based upon a claim for damages arising out of a defective condition of a highway owing to the negligence of the county or its officers, including an action for wrongfully causing death, may be brought only under section 6 of the County Law. Plaintiff's failure to furnish the sort of notice and claim called for by that section is fatal to the institution of this action. The orders should be reversed, the complaint dismissed, and the question certified answered in the affirmative, with costs in all courts.
LOUGHRAN, Ch. J., DESMOND, THACHER and FULD, JJ., concur in Per Curiam opinion; LEWIS, CONWAY and DYE, JJ., dissent on the ground that in death actions service of process in compliance with section 6 is not exclusive of the provisions of section 6-a.
Orders reversed, etc.