Hunt v. City of Oswego — 12 N.Y. St. Rep. 429

Majority

p. 429

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

(Supreme Court, General Term, Fourth Department,

Filed July, 1887.)

Headnote

1. Costs—In actions against municipal cobpobations—When not allowed—Code Crv. Pbo., § 3245.

It is provided by Code Civil Procedure, § 3245, that costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands a judgment for a sum of money only, unless the claim upon which the action is founded was before the commencement of the action presented for payment to the chief fiscal officer of the corporation. Held, that the provisions of this section related to actions ex ddicto as well as others.

2. Same—Chief fiscal offices of municipal cobpobation—Who is— Code Civ. Pbo., § 3245.

Held, that the treasurer of a municipal corporation is its chief fiscal officer within the requirement of the section cited. Fisher v. Village of Cortland, 4 N. Y. St. Rep., 683 , followed.

Appeal from order of Oswego special term denying motion made by defendant to set aside taxation of costs and to disallow costs to the plaintiff, for the reason that it was alleged that plaintiff had not complied with section 3245, Code Civil Pro., before commencement of action.

Action to recover damages to plaintiff’s garden by defendant’s negligence in flooding it by the improper construction of sewers, etc. Judgment was demanded for a sum of money only. Plaintiff recovered a verdict for $150. It appeared that plaintiff’s claim was presented to the common council of the city of Oswego, July 21, 1885, and action brought January 5, 1886.

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

By section 15 of chapter 127 of the Laws-of 1877, it is provided, viz: “ AE claims against the city for damage or injury alleged to have arisen from the defective, unsafe or dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of the city, or from, negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge shaE, within three months after the happening of such damage or injury be presented to the common council by a writing signed by the claimant and properly verified describing the time, place, cause and extent of the damage or injury. The omission to present such claim as aforesaid within said three months shaE be a bar to any action or proceeding therefor against the city.”

Under that section it was a condition precedent to the-right of recovery, that the claim should be presented to the common council. Nothing is found in the section relating; in terms to costs of any such action. The section does not,, therefore, relate to the same subject-matter as that embraced in section 3245 of the Code of Civil Procedure. That section provides, viz: “Costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands a judgment for a sum of money only unless the claim upon which the action is-founded was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation.”

By chapter 463 of the Laws of 1860, relating to the city of Oswego, the powers and duties of the treasurer of the city of Oswego are defined, and the provisions relating thereto are very similar to those found in chapter 406 of the Laws of 1864, relating to the village of Cortland.

In Fisher v. Village of Cortland ( 4 N.Y.St.Rep., 683 ), we-held that the treasurer of that village is “the chief fiscal officer of the corporation,” within the meaning of the words as used in section 3245 of the Code of Civil Procedure. Following our decision there made we must hold that the-plaintiff, in the case in hand, failed to comply with the requirements of section 3245 of the Code of Civil Procedure, and that that section relates to actions ex delicto. In accordance with our opinion in the case last referred to we-must hold that the treasurer is the chief fiscal officer, and that that section of the Code applies to actions of the character of the one now before us, until the contrary shaE be declared by the court of appeals. ■

Since the argument of the case now before us, our attention has been directed to Taylor v. The City of Cohoes ( 6 N.Y.State Rep., 461) decided March 8, 1887. By an inspection of the opinion delivered in that case, it appears the de

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cisión was rested upon chapter 262 of the Laws of 1859, and. the opinion states, among other things, viz: “It has not. yet been decided that under the section of the Code (3245) in an action of this nature, a presentation of the claim must be made in accordance with its provisions before the commencement of the action, on pain of being deprived of costs, if the plaintiff be successful.” We must, therefore, adhere to the conclusion reached in Fisher v. The Village of Cortland (supra).

The order of special term should be reversed, with ten. dollars costs and disbursements, and motion granted, with ten dollars costs.

Boardman and Follett, JJ., concur.