Hunt v. City of Oswego — 11 N.Y. St. Rep. 762

Majority

p. 762

Michael L. Hunt, App’lt, v. City of Oswego, Resp’t.

(Court of Appeals,

Filed October 18, 1887.)

Headnote

1. Costs — Municipal corporations — Actions for—Code Crv. Pro., § 3245.

Cases for the recovery of damages for injuries sustained by reason of the negligence of the servants' of a municipal corporation are not within Code

p. 763

of Civil Procedure, section 3245. Said section applies only to actions arising ex contractu. Following Gage v. Village of Hornellsville (8 N. Y. State Rep., 885).

2. Same—Notice referred to in Laws 1859, chap. 262—When beQUERED.

The notice referred to in Laws 1859, chapter 262, is not required as the condition of a right to recover costs by the plaintiff in actions ex delicto thereunder.

Appeal from an order of the supreme court, general term, fifth department, reversing an order of the special term denying costs to the plaintiff.

W. H. Kenyon, for app’lt; Elisha B. Powell, for resp’t.

—In Gage v. Village of Hornellsville, decided in this court July 1, 1887 (8 N. Y. State Rep., 885), it was held that there was no substantial distinction between section 2, chapter 262 of the Laws of 1859, and section 3245 of the Code of Civil Procedure. It has been frequently held in this court in cases arising under the statute of 1859, that it did not apply to actions ex delicto and that the notice, therein referred to, was not required as the condition of a right to recover costs by the plaintiff in such actions.

The precise question involved in this case came before us in Gage v. Village of Hornellsville, and we there held that section 3245 of the Code of Civil Procedure applied only to actions arising ex contractu. While this result was strongly intimated in Taylor v. Cohoes ( 105 N. Y., 54 ; 6 N. Y. St. Rep., 461 ), it was not expressly so decided, and thus left room for misapprehension upon the question here involved.

Gage v. Village of Hornellsville was decided July 1st, the same day that this case was determined by the general term, and they could not have been informed of our decision, otherwise we are bound to presume their judgment would have been the reverse of that rendered by them.

The order of the general term should be reversed and that of the special term affirmed.

All concur.