For omitted decision of October 20, see post, p. 1038. — [REP.
Present — Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ.
The motion is referred to the court that rendered the decision.
Motion for reargument granted and, on reargument, the decision of this court handed down June 23, 1947 ( ante, p. 929), is hereby amended to read as follows: Order denying motion to dismiss the complaint reversed on the law, without costs, and the motion granted, without costs. The complaint contains two causes of action, the first for damages for wrongful death, the second for damages for personal injuries suffered by plaintiff's intestate prior to his death. The first cause of action is deemed not to have been included within the complaint because of the determination in Matter of Mulligan v. County of Westchester ( ante, p. 927). The notice of claim was served on appellant on December 31, 1946. The summons and complaint were served on February 18, 1947. The applicable statutes (County Law, §§ 6, 6-a, or L. 1931, ch. 561) provide that no action shall be commenced against appellant until the expiration of three months after service of the notice of claim required by section 50-e Gen. Mun. of the General Municipal Law. A complaint served before that time must be dismissed. ( McGovern v. City of New York, 272 N.Y. 455. ) This three-month period is not part of the time limited for the commencement of the action since its commencement is stayed by statutory prohibition. (Civ. Prac. Act, § 24; Amex Asphalt Corp. v. City of New York, 288 N.Y. 721.) The contention that the action was not commenced within the time limited therefor (L. 1931, ch. 561) is without merit. (Civ. Prac. Act, § 20.) Upon the dismissal of this complaint, respondent may commence a new action within the time limited therefor. (Civ. Prac. Act, § 23; McGovern v. City of New York, 250 App. Div. 102.) It cannot be determined from the allegations of the complaint whether the bridge in question was under the control of the Park Commission or not. The applicable statutes in either event provide that no action shall be commenced until the expiration of three months after service of the notice of claim required by the General Municipal Law. Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.