Majority
Headnote
1. Costs—Municipal Corporations—Actions por—Negligence by—Code Crv Pro., § 3245.We held that cases for the recovery of damages for injuries sustained by reason of the negligence of the servants of a municipal corporation were not within the purview of section 2, chap. 262, Laws of 1859. Taylor v. City of Cohoes, 105 N. Y., 54 . The provisions of that section were substantially embodied in section 3245 of the Code. There is no such change in the language of the latter section as requires or will permit us to change our decision, and construe it differently from the former section. We simply decided in Baine v. City of Rochester ( 85 N. Y., 523 ), that under section 3245 a claim against a municipal corporation arising ex contractu must have been presented to its chief fiscal officer before the commencement of the action in order to entitle the plaintiff to costs, and thus actions ex delicto against municipal corporations are left to stand, as to costs, upon the prior decisions. We do not agree that a claim against this municipality could, under the section of the Code, be presented to its board of trustees. The chief fiscal officer of such corporation is the officer who receives, keeps and disburses the moneys of the corporation, and such an officer is the treasurer.
The order should be affirmed with costs.
All concur.