
    Michael L, Hunt, Appellant, v. The City of Oswego, Respondent.
    
      Court of Appeals,
    
    
      October 18, 1887.
    
      Costs. Actions against municipal corporations.—Section 3245 of the Code does not apply to actions ex delicto, and the notice, referred to in ■ said section, is not required as the condition of a right to recover costs by the plaintiff in such actions.
    Appeal from an order of the general term of the supreme court, reversing a special term order denying costs to the plaintiff.
    
      W. H. Kenyon, for appellant.
    
      Elisha B. Powell, for respondent.
   Ruger, Ch. J.

In Gage v. Village of Hornellsville, decided in this court July 1, 1887 (8 N. Y. State Rep. 885), it was held that there was no substantial distinction between section 2, chapter 262 of the Laws of 1859, and section 3245 of the Code of Civil Procedure. It has been frequently held in this court in cases arising under the statute of 1859, that it did not apply. to actions ex delicto and that the notice, therein referred to, was not required as the condition of a right to recover costs by the plaintiff in such actions.

The precise question involved in this case came before us in Gage v. Village of Hornellsville, and we there held that section 3245 of the Code of Civil Procedure applied only to actions arising ex contractu. While this result was strongly intimated in Taylor v. Cohoes (105 N. Y. 54; 6 N. Y. St. Rep. 461), it was not expressly, so decided, and thus left ■ room for misapprehension upon the question here involved.

Gage v. Village of Hornellsville was decided July 1st, the same day that this case was determined by the general term, and they could not have been informed of our decision, otherwise we are bound to presume their judgment would have been the reverse of that rendered by them.

The order of the general term should be reversed and that of the special term affirmed,

All concur.  