Onondaga County v. City of Amsterdam — 139 A.D. 883

Majority

p. 883

Onondaga County, Respondent, v. City of Amsterdam, Appellant.

(Appeal No. 2.)

Fourth Department,

July 12, 1910.

Headnote

Poor Law — action to recover for support of pauper — costs.

Section 3245 of the Code of Civil Procedure, providing- that in actions against a municipal corporation to recover a sum of money only the claim must be presented to the auditing board of the corporation in order to entitle the plaintiff to costs, does not apply to an action against a city where a poor person has a settlement brought by a county to which she removed to recover for support there furnished.

In any event, a notice by the county furnishing the support requiring the city where the pauper had her settlement to pay for the support furnished, and to care for the pauper, is sufficient to entitle the county to costs in an action brought against the city.

Appeal by the defendant, the City of Amsterdam, from an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the county of Onondaga on the 23d day of September, 1909, denying the defendant’s motion for retaxation of costs.

Christopher J. Heffernan, for the appellant.

Herbert L. Smith, for the respondent.

To entitle the plaintiff to costs, section 3245 of the Code of Civil Procedure requires, in an action against a municipal corporation, in which the complaint demands a judgment for money only, that the claim be presented before the commencement of the action to the board of such corporation having power to audit the same or to its chief fiscal officer within a time therein stated.

The defendant contends that plaintiff did not present its claim as required by this section, and, therefore, is not entitled to costs. That question is presented by its appeal from the order denying the motion for a retaxation of costs. The question of the presentation of the plaintiff’s claim has been fully discussed upon the appeal from the judgment and the order denying the defendant’s motion to dismiss the complaint (Onondaga County v. City of Amsterdam, No. 1, 139 App. Div. 877 ), decided herewith; and if I am right in the

p. 884

conclusion there reached, I think it follows that this order should be affirmed. As there pointed out, the duty of passing upon the liability of the defendant city for the support of thé poor person, out of which this controversy arises, was devolved upon the overseer, of the poor, and the amount of the claim as well as its justness was for ’ Ms détermination. He denied the liability of the city,,and I think if that section applies at all,.what was done in asserting that liability against the city and the denial thereof by its overseer, of the poor, a sufficient presentation of the claim to entitle the plaintiff to costs.

• The order should, therefore, be affirmed, with' ten dollars, costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and- disbursements.