Gage v. Village of Hornellsville — 2 N.Y. St. Rep. 345

Majority

p. 345

Lydia A. Gage, respondent, v. The Village of Hornellsville, appellant.

(Supreme Court, General Term, Fifth Department,

Filed June, 1886.)

Headnote

■1. Municipal corporation—Villages—Chief fiscal officers of.

By its charter, all claims against the village of Hornellsville must, before payment, be presented in writing to the board of trustees, and audited by them and made payable from the funds by resolutions entered in their journal. Upon presentation of such resolutions, certified by the clerk and signed by the president, the treasurer is authorized to pay such claims. Neither the charter, nor any law, designate the treasurer as the chief fiscal officer. The board of trustees held to be the chief fiscal officers within section 3345 of the Code of Civil Procedure.

3. Same—Costs.

Presentation of the claim by the plaintiff to the board of trustees before the commencement of the action, sufficient to entitle plaintiff to costs if successful in suit.

Appeal from an order of the Monroe special term denying the defendant’s motion for a retaxation of costs. The plaintiff received injuries to her person by reason of the defective condition of a sidewalk within the limits of the village of Hornellsville, and recovered a judgment on a trial before a referee for the sum of $356. Costs were taxed in her favor for the sum of $185.82. The defendant moved to set aside the taxation upon the ground that the plaintiff did not, before commencing her action, present her claim for payment to the chief fiscal officer of the corporation.

p. 346

J. W. Near, for appellant; Bennis & Arcutt, for respondent.

The counsel for the defendant contends that the treasurer is the defendant’s chief fiscal officer, within the meaning of section 3245 of the Code of Civil Procedure.

The plaintiff agrees that the members of the board of trustees, acting as a board, are the chief fiscal officers and are charged with the financial affairs connected with the municipal government.

The claim was not presented to the treasurer, but was to the board of trustees, who considered, acted upon and rejected the same. The treasurer is elected at each annual charter election. He is not designated in the charter or by any by-law as the fiscal officer of the defendant corporation. He is not authorized to audit or allow any claims whatever made against his corporation, nor is he a member of any board charged with such duties. His only duties are to receive, keep and disburse the funds of the village upon written orders, and to keep a proper account of the moneys so received and paid out, and to make an annual report to the board of trustees showing the condition of his account. All claims against the corporation must be presented in writing to the board of trustees, and if audited, the same must be by a resolution entered in the journal stating the fund out of which it is made payable. When so allowed, and the resolution certified by the clerk and signed by the president, the same is to be paid by the treasurer out of any proper funds in his hands for that purpose.

By other provisions of the charter the board of trustees have the power to determine the sums of money which shall be annually assessed upon the property for municipal purposes, and to examine all accounts and the claims against the village and allow such as are just and legal.

The duties of the treasurer are purely clerical. He is vested with no discretion and not called upon to do any act which requires the exercise of his judgment on financial questions. All such duties are imposed upon the board of trustees, and they, acting as a board, constitute in our opinion, the “chief fiscal officer” of the village of Hornellsville, within the meaning of the phrase as used in the section of the Code under consideration. It does not follow from the mere circumstance that the officer having the custody of the funds of a municipal corporation and charged with no other duties except to pay out the same on written orders, is designated “ Treasurer,” that he is its chief fiscal officer. In many municipalities the comptroller, and not the treasurer, is made the fiscal officer, by reason of the duties he has to perform. If he had been designated in the charter

p. 347

as the chief fiscal officer of the municipality, that would determine the character of his office so far as it is involved in the question under consideration. Baine v. City of Rochester, 85 N. Y. 523 . But as he is not in terms designated as such officer we must examine all the provisions of the charter for the purpose of ascertaining who, among its officers occupies that position. Unless some provision can be found to the contrary it is most reasonable to say that the officer or the board of officers, who are vested with the power to allow and direct the payment of all claims made against the corporation, is its chief fiscal officer,' rather than the' officer whose only duty is to pay out the money on the claim, after it has been so ordered by others. This is the view we took of the case of Greir v. The City of Lockport (21 N. Y. W. Dig. 444), which presents similar questions.

Order affirmed, with ten dollars costs and disbursements.

Smith, P. J., Haight and Bradley, JJ., concur.

Cases cited

Baine v. City of Rochester 85 N. Y. 523 N.Y. 1881-06-21 p. 347