Onondaga County v. City of Amsterdam

To entitle the plaintiff to costs, section 3245 of the Code of Civil Procedure requires, in an action against a municipal corporation, in which the complaint demands a judgment for money only, that the claim be presented before the commencement of the action to the board of such corporation having power to audit the same or to its chief fiscal officer within a time therein stated.

The defendant contends that plaintiff did not present its claim as required by this section, and, therefore, is not entitled to costs. That question is presented by its appeal from the order denying the motion for a retaxation of costs. The question of the presentation of the plaintiff’s claim has been fully discussed upon the appeal from the judgment and the order denying the defendant’s motion to dismiss the complaint (Onondaga County v. City of Amsterdam, No. 1, 139 App. Div. 877), decided herewith; and if I am right in the *884conclusion there reached, I think it follows that this order should be affirmed. As there pointed out, the duty of passing upon the liability of the defendant city for the support of thé poor person, out of which this controversy arises, was devolved upon the overseer, of the poor, and the amount of the claim as well as its justness was for ’ Ms détermination. He denied the liability of the city,,and I think if that section applies at all,.what was done in asserting that liability against the city and the denial thereof by its overseer, of the poor, a sufficient presentation of the claim to entitle the plaintiff to costs.

• The order should, therefore, be affirmed, with' ten dollars, costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and- disbursements.