The only question of fact litigated in the Municipal Court was whether or not the plaintiff was laid off or discharged in'November, 1900, and also in November, 1901. It is practically conceded that the defendant had the right and power to so lay off or discharge if it saw" fit. So that, as suggested, the only issue tried was, Did the defendant discharge the plaintiff from its employ ? We cannot assent to the proposition that the' evidence was of such a character as to justify the County Court in setting aside the verdict of the Municipal Cotirt because contrary to or against the weight of evidence. (Murtagh v. Dempsey, 85 App. Div. 204.)
We, however, deem it unnecessary to discuss the evidence bearing pro and eon upon the sole question of fact litigated, because we are of the opinion that the judgment of the Municipal Court must be reversed and a new trial granted for another reason, about which there is no controversy upon the evidence. ’ Chapter 4 of the Laws of 1902 provides: “ No claim shall be paid and no action at law commenced or recovery had, for unpaid salaries, fees'or emoluments for the services of any city official, subordinate or employee in any city of the second class, rendered prior to January first, nineteen hundred and two, until the claim therefor shall have been first presénted to and passed upon by the board of estimate and apportionment of said City. And no proceeding shall be instituted against said city, or against the board of estimate thereof, on account of such services, salaries, fees or emoluments so rendered prior to January first, nineteen hundred and two, unless the same shall be commenced or instituted within two months after the passage of this act.” •
No proof was made or attempted to be made by the plaintiff that his claim had been presented to and passed upon by the board of estimate and apportionment of said city prior to the commencement of the action. At the close of plaintiff’s case, and also at the close of the whole evidence, a nonsuit was asked for by the defendant upon the ■ express ground that no proof had been made that such claim had been so presented. We think the refusal to nonsuit con*735stituted reversible error, (Reining v. City of Buffalo, 102 N. Y. 308; Olmstead v. Town of Pound Ridge, 71 Hun, 25; Curry v. City of Buffalo, 135 N. Y. 366.)
It is unnecessary to determine upon this appeal whether or not the balance of the act is constitutional and valid. We think the authorities above cited amply establish the proposition that the presentation for audit of a claim like the one in question is a prerequisite to maintaining an action to enforce the same, and nothing could be added to the reasoning of the cases why such rule should be adhered to.
We conclude that upon the evidence appearing in the record before us defendant’s motion for a nonsuit should have been granted, and that the denial of such motion by the Municipal Court presents reversible error. For the reasons suggested we must affirm the judgment of/the County Court, with costs.
All concurred.
Judgment affirmed, with costs.