Hyperlawhypertext legal database Brewster v. City of Hornellsville 54 N.Y.S. 915

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Brewster v. City of Hornellsville

54 N.Y.S. 915 Court N.Y. App. Div. Decision date 1898-12-09 English

Delivered by HARDIN, P. J.

Contents

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p. 915
BREWSTER v. CITY OF HORNELLSVILLE.
(Supreme Court, Appellate Division, Fourth Department.
December 9, 1898.)

Headnote

1. Appeal—Discretionary Costs.
Where the record does not show an abuse of discretion in the disallowance of discretionary costs, such disallowance will not be disturbed.
2. Costs—Claim against City.
Under the direct provisions of Code Civ. Proc. § 3245, costs will not be awarded to plaintiff in an action against a city on a money demand, where the claim was not presented for payment to the chief fiscal officer of the corporation before suit brought.
Appeal from special term, Monroe county.
Action by Harry L. Brewster against the city of Hornellsville. From an order denying plaintiff’s motion for an additional allowance of costs, plaintiff appeals.
Affirmed.
The order was placed upon two grounds, to wit: (1) “Upon the ground that the plaintiff failed to present to the chamberlain, the chief fiscal officer of the defendant, the claim on which his action was founded, which is prerequisite to the recovery of costs by the plaintiff;” and ,(2) “on the ground that the contest was principally for the amounts to
p. 916
be allowed for the several claims as to which neither party succeeded wholly in the action.”
Argued before HARDIN, P. J., and FOLLETT, ADAMS, and WARD, JJ.
De Merville Page, for appellant.
E. L. Dolson and F. A. Robbins, for respondent.

The special term was called upon to exercise its discretion in respect to whether the additional allowance should be allowed or not. The papers do not show that the discretion was abused, and it ought not to be interfered with. Meyer Rubber Co. v. Lester Shoe Co., 92 Hun, 52 , 36 N. Y. Supp. 729 ; Proctor v. Soulier, 8 App. Div. 69 , 40 N. Y. Supp. 459 .

2. The claim was not presented, before the action was commenced, to the chief fiscal officer of the city. Gage v. Village of Hornellsville, 106 N. Y. 668 , 12 N. E. 817 ; Dawson v. City of Troy (Sup.) 2 N. Y. Supp. 137 ; King v. Village of Randolph, 28 App. Div. 28 , 50 N. Y. Supp. 902 .

Order affirmed, with $10 costs and disbursements. All concur.

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