
    Zeicha Sweet, Resp’t, v. City of Buffalo, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    Municipal cobfobations—Claims—Auditing.
    Sections 15 and 16, chapter 105 of 1891 (Buffalo City Charter), limit the time within which the common council can, for a defect in the verification, reject a claim, and, unless the objection is taken by the board within thirty days, it is not available for any purpose after the expiration of such time, and the form and verification will be deemed sufficient.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Charles F. Feldman, for app’lt;
    L. L. Lewis, Jr., for resp’t.
   BRADLEY, J.

The purpose of the action was to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. The evidence was sufficient to permit the court to submit the questions of negligence of the defendant and of contributory negligence of the plaintiff to the jury, and to support the verdict. The further question arises upon the provisions of the city charter that:

“ The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk, * * * and if for damages for wrong or injury when, where and how occasioned, and shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made and that no set off exists, except those stated.’’ Laws 1891, c. 105, § 15.

Also that:

“ No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days alter the claim shall have been filed with the city clerk for presentation to the common council for audit, in the manner and form aforesaid. * • * * IE the claim be not made out and verified as above required, the board of aldermen may within thirty days after its presentation refuse on that ground to audit it.’’ Laws 1891, c. 105, § 16.

The claim of the plaintiff was filed with the city clerk on April 18, 1893, and on the 22d day of May following the claim was denied by the board of aldermen on the ground that the affidavit of verification was defective. The claim was presented in the form of a petition, which contained all that was essential for such purpose. The affidavit annexed to it was “ that the said petition is true, and the whole thereof.” This was not a full compliance with the statute. As has been seen, the statute permits the board of aldermen on that ground to refuse within thirty days after the presentation of a claim to audit it. The filing of the claim with the city clerk was a presentation to the • board. Murphy v. City of Buffalo, 38 Hun, 49. The purpose of the statute evidently was to require adverse action of,the board, founded upon defects in an affidavit of verification within that time, so that the claimant might not be prejudiced by further delay in making another presentation of his claim supported by his corrected affidavit. It would seem that this provision of the statute limits the time within which the' board can, for such defect, reject a claim, and, .as the consequence, that unless the objection is taken by the board within the thirty days, it is not available for any purpose after the expiration of such time. This is a reasonable interpretation of the purpose of the statute in that respect, and, as the claim was not rejected within thirty days after its presentation, the defect in the affidavit is not tenable to defeat the action.

The judgment and order should be affirmed.

All concur.  