Stanton v. Town of Taylor — 45 N.Y. St. Rep. 906

Majority

p. 906

Charles H. Stanton, Resp’t, v. The Town of Taylor, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 13, 1892.)

Headnote

1. Municipal cobfobations—Claim against town—To whom presentable.

The presentation of a claim against a town to the supervisor of the town is a compliance with § 3245 of the Code, which directs that such claims he presented “for payment to the chief fiscal officer.”

2. Same—Action on claim—Costs.

In such case, the claim having been presented and payment refused, suit brought, and a verdict rendered for plaintiff, the latter is entitled to costs.

3. Same—Interest.

In an action upon town bond coupons interest is properly allowed on the claim from the time of its maturity.

Appeal from a judgment entered in Cortland county, May 21, 1891, upon a decision made at a circuit held in that county, October, 1889, a jury trial having been waived, for the sum of $8,096.47 damages, and $107.13 costs.

Action to recover upon several coupons enumerated in the complaint cut from several bonds issued by the defendant in aid of the construction of the Utica, Chenango & Cortland Railroad Company, incorporated under the laws of the state of New York for the construction of a railroad from Cortland to Otselic in the county of Chenango, in virtue of chap. 907 of the Laws of 1869.

B. A. Benedict, for app’lt; H. D. Newton and Edward B. Thomas, for resp’t.

Similar questions are presented by this appeal to those brought before us in Beattys v. Town of Solon. Our views

p. 907

are expressed in the opinion prepared in that case and are applicable to the questions in this case.

(2) The appellant insists in this cáse that the plaintiff was not entitled to costs inasmuch as the defendant is a municipal corporation, and Suggests that the claim upon which the action is founded was not presented “ for payment to the chief fiscal officer,” and calls our attention to § 3245 of the Code of Civil Procedure.

In Gage v. Village of Hornellsville, 106 N. Y., 667 ; 8 St. Rep., 885 , the court, in considering the claim made against a municipality, said i “ The chief fiscal officer of such a corporation is the officer who receives, keeps and disburses the moneys of the corporation, and such an officer is the treasurer.”

Applying that principle to the case in hand, inasmuch as the town has no treasurer, the presentation of the claim to the supervisor of the town is a compliance with the provision of the section of the Code. In the complaint it is alleged “ That on or about the year 1878 the defendant and its officers refused and neglected to make payment upon the coupons then becoming due, and have from that time and ever since refused and still refuse to pay the coupons as they accrue due, and that the coupons representing the interest upon said bonds from and after the year 1878, have not been paidand in the thirty-fourth finding of fact it is stated “ That in 1878 the said town of Taylor refused to pay the interest upon the bonds so issued by its commissioners, and since such refusal no commissioner, supervisor or collector, or any other officer of the said town has taken any action towards raising any funds to pay the interest or principal upon said bonds ; and no funds have been raised by said town since 1877 for that purpose.” No proof was given upon the trial tending to show that claims made payable had not been presented to the town; on the contrary, the course of the trial seems to indicate that it was assumed that the claims had been presented and the town had refused to pay the same. The question now made does not appear to have been specifically presented at the trial; nor does it appear that any motion has been made to strike the costs from the judgment. Under these circumstances we are inclined to think the objection to the recovery of the costs is unavailing and comes too late. In accordance with my views expressed in the opinion delivered in Beattys v. Town of Solon, I think the interest should be eliminated from the judgment.

However, the majority of the court are of the opinion that interest was properly allowed, hence the judgment will be affirmed, with costs.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.