Opinion
Submitted June 14, 1881
Decided June 21, 1881
Jno. R. Fanning for appellant. A.L. Barton for respondent.
The plaintiff was not entitled to costs, for the reason that he failed to present the claim for payment before the commencement of the action to the city treasurer, who, by section 72 of chapter 14 of the Laws of 1880, is declared to be the chief fiscal officer of the city. (Code of Civil Procedure, § 3245.)
It is not an answer to this requirement of the Code, that the city treasurer was not authorized to adjust or pay the claim on presentation. The object of the provision is to insure notice to a municipal corporation of claims against it, before it should be subjected to the costs of suit, and notice to the chief fiscal officer, was prescribed as the means of giving notice to the corporation.
Section 3248 does not apply to this case. The certificate there provided, is of some fact appearing on the trial, and has no application to facts extrinsic to the action, and which have no connection with the issue, and of which the court or referee, may have no knowledge. The non-presentation of a claim against a municipal corporation to its chief fiscal officer, before suit brought, pursuant to section 3245, is not a defense to the action, and is not a fact involved in the trial; and it cannot be supposed that the legislature intended, that as to such a fact, the certificate of the court should be required.
The claim of the defendant to costs, cannot be supported. By the fourth subdivision of section 3228, the plaintiff is entitled to costs in an action on a money demand, other than those previously specified, provided he recovers $50 or more; and by section 3229, the defendant is entitled to costs in an action specified in section 3228, unless the plaintiff is entitled to costs, as therein specified. Section 3229 does not apply to a case where the plaintiff recovers $50 or more, but is prevented from recovering costs for non-presentation of the claim under section 3245. This is not one of the cases specified in section 3228. It was not intended, that the plaintiff who recovers a judgment against a municipal corporation for more than $50, should be subjected to the payment of costs, as a penalty for non-presentation of his claim, in addition to being deprived of the right to costs, given in other cases.
The order of the General Term and of the County Court should be modified, by declaring that neither party is entitled to costs; and as thus modified, it should be affirmed, without costs to either party.
All concur.
Ordered accordingly.