Augusta C. Ottmann, as Administratrix, etc., of Milford H. Ottmann, Deceased, Appellant, Respondent, v. The Incorporated Village of Rockville Centre, Respondent, Appellant, and Francis Klaess and Another, Defendants

Augusta C. Ottmann, as Administratrix, etc., of Milford H. Ottmann, Deceased, Appellant, Respondent, v. The Incorporated Village of Rockville Centre, Respondent, Appellant, and Francis Klaess and Another, Defendants. [MAJORITY] Order modified so as to provide that the sixth separate and complete defense of the amended answer of defendant The Incorporated Village of Rockville Centre be struck out, and as so modified affirmed, with ten dollars costs and disbursements to plaintiff. In our opinion, section 205 of the General Municipal Law is not an exclusive remedy, and plaintiff has a right to maintain this action on the theory of negligence in the operation of the fire truck, under the provisions of section 282-g of the Highway Law. The seventh separate and complete defense was, in our opinion, properly struck from the amended answer, because the filing by plaintiff of her claim against the village, under section 205 of the General Municipal Law, is not to be regarded as an election of remedies. Lazansky, P. J., Kapper, Carswell, Seudder and Tompkins, JJ., concur.