
    Catharine Taylor, App’lt, v. City of Cohoes, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    Costs—Action against municipal corporation prior to Code Civil Procedure—Laws 1859, chap. 262, § 2.
    The question of costs in actions against municipal corporations for injuries caused by negligence, brought before the Cpde of Civil Procedure went into effect, was governed by Laws 1859, chap. 262, § 2, and it was not necessary to first present the claim to the chief fiscal officer of such corporation before bringing the action in order to obtain costs.
    This action was brought against the city of Cohoes for injuries sustained by plaintiff through a fall upon a defective sidewalk in said city, and resulted in a verdict for plaintiff for $2,000. On an appeal to the general term on exceptions a judgment was directed to be entered in favor of plaintiff upon the verdict, with costs.
    The taxation of costs, both of the circuit and of affirmance on appeal, was opposed by defendant on the ground that the complaint demanded judgment for the payment of a sum of money only, and no claim for damages had been presented to or filed with the chief fiscal officer of the defendant. A claim had been presented to the common council prior-to the bringing of the action and referred to the law committee, but such claim had not been audited or allowed. The action was begun August 21, 1880, and the Code of Civil Procedure took effect September 1, 1880. The clerk taxed plaintiff’s bills of costs at the amounts claimed and defendant excepted. This appeal is brought from an order of the general term, third department, reversing an order denying a motion for retaxation of costs, granted by Parker, J., at special term.
    
      James Lansing, for appl’t; P. D. Niver, for resp’t.
    
      
       Reversing 5 N. Y. State Rep., 92; 42 Hun, 654, mem.
      
    
   Per Curiam.

This action was brought before the new Code went into effect, and hence the section in regard to costs (§ 3245) has no application here. The case must be decided under the act of 1859 (chap. 262, § 2, Laws 1859). Under that section of the law, this court substantially 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 its purview. McClure v. Supervisors of Niagara, 3 Abb. Dec., 83; Howell v. City of Buffalo, 15 N. Y., 512; McGaffin v. City of Cohoes, 74 id., 387. All of these cases did not arise under the act of 1859, but the principle decided in them is as stated.

The general term in this case, and in Dressel v. City of Kingston (32 Hun, 526), decided differently upon the authority of Baine v. City of Rochester (85 N. Y., 523). That case, we think, does not go to the extent assumed by the general term.

In the first place, it arose under the section of the Code above cited, and also the cause of action was ex contractu. It was. held that in such an action it was not an answer to the requirement of that section of the Code to show that-the city treasurer, the chief fiscal officer of the city, was-not authorized to adjust or pay the claim upon presentation. It is true that, in the opinion in the Baine Case, it is not specially stated that the action arose on contract, yet this was its character, and the decision was made with such fact existing. Nothing was said in the opinion as to these other cases above cited, and it cannot be supposed that, with reference to actions which were commenced while the act of 1859 was in force, the court meant to overrule them without making any reference to them whatever.

The Baine Case is authority for just what was therein decided, and it has not yet been decided that, under the section of the Code (§ 3245), in an action of this nature, a presentation of the claim must be made in accordance with its provisions before the commencement of the action, on pain of being deprived of costs, even if the plaintiff be successful.

The order of the general term should be reversed, and that of the special term affirmed, with costs in both courts.

All concur.  