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 of 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. Sup'rs of Niagara, 3 Abb. Ct. App. Dec. 83;Howell v. City of Buffalo, 15 N.Y. 512; McGaffin v. Cityof 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 ofKingston (32 Hun, 526) decided differently upon the authority ofBaine 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 *Page 57 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.
Ordered accordingly.