Butler v. City of Rochester — 11 N.Y. Sup. Ct. 321

Majority

p. 321

WILLIAM G. BUTLER, Respondent, v. THE CITY OF ROCHESTER, Appellant.

Headnote

Chap. 262 of 1859—presentation of claim to common council—when a compliance with requirements cf— costs.

A presentation of a claim against a municipal corporation to the common council thereof, is a sufficient compliance with chapter 262 of 1859, especially when

p. 322

the corporate powers - are so distributed that the officer, who, from his duties, might be assumed to be the chief fiscal officer of the corporation, has no power to pay the claim if presented to him. ' - ® ;

This is an appeal by defendant from an order made by Judge Dwight at the Monroe Special Term, denying a motion for retaxation of costs.

The defendant claimed that the demand upon which the above suit was brought, should have been presented to the city .treasurer for payment before suit brought.

The plaintiff claims that a presentation of the demand to the common council of defendant was proper, and that it was not necessary to present it to the city treasurer. The referee fora that the demand was presented to the common council of defenda: before suit brought and was refused.

James Break Perkins, for the appellant.

John W. Kelly, for the respondent.

The intention of the legislature in enacting the statute, ehapt 262 of 1859, is manifest. It was to prevent the recovery of coe against municipal corporations, in cases where the creditor had n afforded the corporation an opportunity to pay before bringing I: action. That opportunity was given in this case. The claim w presented to the common council, who alone could authorize i payment, and it was rejected. The treasurer is a subordina officer. The relation between him and "the common council, matters of this kind, resembles that of an agent to his princip: and a presentation to the higher authority is equivalent to one the lesser. The presentation of the claim to the treasurer, after t' common council had refused to pay it, would have been an id ceremony. The statute does not require a supererogatory act. 1 treasurer was the chief fiscal officer, he was not authorized to ps He was not therefore the officer whom the statute, upon a fair co struction, designated. For, when the corporate powers have be so distributed that the officer who, from his duties, might language is, that the claim must be presented/^ payment. If t

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regarded as the chief fiscal officer, has no authority to pay a creditor when his claim is presented, he is not such an officer within the meaning of the statute.^[1]

The order appealed from should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs.

* McClure v. Supervisors, 50 Barb., 594 ; S. C. in Court of Appeals, 4 Abb. (N. S.), 202.