
    COURT OF APPEALS.
    Baine, respondent, agt. The City of Rochester, appellant.
    
      Municipal corpoi'ations — Actions against—Costs in—Plaintiff to recover must present claim to chief fiscal officer before action—That chief fiscal officer has no authority to pay is no answer to this requirement — In actions against, if plaintiff recovers fifty dollars or over, defendant is not entitled, to costs, although claim is not presented — Won-presentation of claim is not a defense to action noi' a fact in issue— To what facts certificate entitling party to costs applies— Code of Civil Procedure, sections 3228, 3229, 3245, 3248.
    In an action against a municipal corporation, a plaintiff demanding judgment for a sum of money only, who fails to present his claim for payment to the chief fiscal officer (i. e., the treasurer) of such corporation before the commencement of the action, cannot, under section 3245 of the Code of Civil Procedure, be awarded costs, although he recover a verdict against the corporation. It is no answer to this requirement that the chief - fiscal officer is not authorized to adjust and pay the claim on presentation.
    When the plaintiff fails to so present his claim, and recovers the sum of fifty dollars or more, the defendant does not, by reason of the plaintiff’s not being entitled to costs, become entitled thereto; that the plaintiff is not entitled to costs under such circumstances is not a case specified in section 3228 of the Code of Civil Procedure, and the defendant is, therefore, not entitled to costs under section 3229.
    A plaintiff who recovers a judgment against a municipal corporation for more than fifty dollars, should not 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 certificate to entitle a party to costs, &c., provided for by section 3248 of the Code of (iivil Procedure, 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.
    The non-presentation of a claim against a municipal corporation to its chief fiscal officer, is not a defense to the action, and not a fact involved in the trial; and the certificate referred to in section 3248 is not required as to the fact of non-presentation.
    
      June, 1881.
    Appeal from an order of the general term, fourth department, affirming an order of the county court of Monroe county, setting aside a taxation of costs in favor of the defendant and against the plaintiff.
    The action was brought in the county court of Monroe county against the city of Eochester to recover for services, and the plaintiff obtained a verdict for $228.58.
    Before the commencement of the action the plaintiff presented his claim for payment to the common council instead of the city treasurer, the chief fiscal officer of the city.
    . The defendant, notwithstanding the verdict, served a bill of costs in its favor, and noticed the same for taxation before the-clerk of the court, on the ground that the plaintiff, having omitted to present his claim to the proper officer, could not, under section 3245 of: the Code of Civil Procedure, be awarded costs, and that the plaintiff, not being entitled thereto, they should be taxed in favor of the defendant under section 3229. The plaintiff opposed the taxation on the ground, among others, that there was no competent evidence before the clerk that the plaintiff had not presented his claim to the proper officer, and that the only competent evidence of such fact would be a certificate of the judge who presided at the trial, as provided by section 3248. The clerk taxed the costs in favor of the defendant.
    
      J. R. Fanning, for appellant.
    
      A. L. Barton, for respondent.
    The powers and duties of the common council in regard to auditing, allowing and paying claims, and the raising of money to pay them, and the restrictions on the treasurer against paying except as ordered by the common council, remain, under chapter 14 of the Laws of 1880, the same as they were when Butler agt. City of Rochester (4 Hun, 32) was decided (McClure agt. Supervisors, &c., 4 Abb. N. C., 202).
   Andrews, J.

— The plaintiff was not entitled to costs, for the reason that he failed to present the claim for payment 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, before the commencement of the action {Code of Civil Procedure, sec. 3245.)

It is not an answer to this requirement of the Code that the city treasurer was not authorized to adjust and pay the claim on presentation. The object of the Code was 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 fifty dollars 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 fifty dollars or more, but who is prevented from recovering costs for non-presentation of the claim under 3245. This is not one of the cases specified in 3228.

It was not, we think, intended that the plaintiff who recovers a judgment against a municipal corporation for more than fifty dofiars, 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.'  