Hardin, P. J. Similar questions are presented by this appeal to those brought before us m Beattys v. Town of Solon, 19 N. Y. Supp.37. Our views are expressed in the opinion prepared in that case, and are applicable to the questions in this case.
The appellant insists in this case that the plaintiff was not entitled to costs, inasmuch as the defendant is a municipal corporation, and suggests that the claim upon which the action is founded was not presented “for payment to the chief fiscal officer, ” and calls our attention to section 3245, Code Civil Proc.
In Gage v. Village of Hornellsville, 106 N. Y. 667, 12 N. E. Rep. 817, the court, in considering the claim made against a municipality, said: “The chief fiscal officer of such a corporation is the officer who receives, keeps, and disburses the moneys of the corporation, and such an officer is the treasurer.” Applying that principle to the case in hand, inasmuch as the town has no treasurer, the presentation of the claim to the supervisor of the town is a compliance with the provision of the section of the Code.
In the complaint it is alleged “that, on or about the year 1878, the defendant and its officers refused and neglected to make payment upon the coupons then becoming due, and have from that time and ever since refused, and still re 44 fuse, to pay the coupons as they accrue due, and that the coupons representing the interest upon such bonds, from, and after the year 1878, have not been paid;” and in the thirty-fourth finding of fact it is stated “that in 1878 the said town of Taylor ref used to pay the interest upon the bonds so issued by its commissioners, and since such refusal no commissioner, supervisor, or collector, or any other officer of the said town, has taken any action towards raising any funds to pay the interest or principal upon said bonds, and no funds have been raised by said town since 1877 for that purpose.” lío proof was given upon the trial tending to show that claims made payable had not ■been presented to the town.
On the contrary, the course of the trial seems to indicate that it was assumed that the claims had been presented, and the town had refused to pay the same. The question now made does not appear to have been specifically presented at the trial, nor does it appear that any motion has been .made to strike the costs' from the judgment. Under these circumstances, we are inclined to think the objection to the recovery of the costs is unavailing, and comes too late.
In accordance with my views expressed in the opinion delivered in Beattys v. Town of Solon, I think the interest should be eliminated from the judgment. However, the majority of the court are of the opinion that interest was properly allowed; hence the judgment will be affirmed, with costs. All concur.
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