The intention of the legislature in enacting the statute (chapter 262 of 1859) is manifest. It was to prevent the recovery of costs against municipal corporations in cases where the creditor had not afforded the corporation an opportunity to pay before bringing his action. That opportunity was given in this case. The claim was presented to the common council, who alone could authorize its payment, and it was rejected. The treasurer is a subordinate officer. The relation between him and the common council in matters of this kind resembles that of an agent to his principal, and á presentation to the higher authority is equivalent to one to the lesser. The presentation of the claim to the treasurer, after the common council had refused to pay it, would have been an ' idle ceremony. The statute "does not require a supererogatory act. Its language is that the claim must be presented for payment. If the treasurer was the chief fiscal officer, he was not authorized to pay. He was not, therefore, the officer whom the statute, upon a fair construction, designated. For, when the corporate powers have been so distributed that the officer who, from his duties, might be regarded as the chief fiscal officer has no authority to pay a creditor when his claim is presented, he is not such an officer within the meaning of the statute. McClure v. Supervisors, 50 Barb. 594; S. C., in Court of Appeals, 4 Abb. N. S. 202.
The order appealed from should be affirmed, with costs.
Order affirmed.