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JOSEPH v. McVEIGH

285 A.D. 386 (1955)

Aline McE. Joseph, Individually and as Administratrix of The Estate of Abatha Joseph, Deceased, Respondent, v. Charles McVeigh et al., Individually and as Executors and Trustees under The Will of Lewis S. Morris, Deceased, et al., Defendants, and City of New York, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

February 15, 1955.

Attorney(s) appearing for the Case

Morris G. Zirin of counsel (Bannigan & Zirin, attorneys), for respondent.

Fred Iscol of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for appellant.

COHN, J. P., BOTEIN and RABIN, JJ., concur with CALLAHAN, J.; BREITEL, J., concurs in separate opinion.

CALLAHAN, J.

Plaintiff's intestate was injured on March 3, 1953, and died later on the same day. The complaint alleges two causes of action in tort against the City of New York (and others) for (1) conscious pain and suffering, and (2) wrongful death.

The city has pleaded as a separate defense to both causes of action that plaintiff has failed to comply with section 50-e of the General Municipal Law, which...

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