#### LELIA E. MARSH, Appellant, *v.*THE VILLAGE OF LANSINGBURGH, Respondent.

*Costs*— *liability of a municipal corporation therefor, in an action in a Justice’s*Cov/i't— *Code of Civil Procedure, sec.*3347, *sub.*13, 3245.

Section 3245 of the Code of Civil Procedure, providing that costs cannot be awarded to the plaintiff in an action against a municipal corporation, unless the claim upon which it is founded has, before the commencement of the action, been presented for payment to the chief fiscal officer of the corporation, does not apply to actions which are commenced in a Justice’s Court,1 nor is the plaintiff’s right to recover costs affected by the fact that the defendant has appealed from the decision of the justice to the County Court, where the plaintiff has again recovered a judgment.

Appeal by tbe plaintiff from an order of the Rensselaer county judge, affirming the action of the clerk of Rensselaer county in refusing to tax the plaintiff’s costs on the trial of the action, in the Rensselaer County Court, on an appeal, from a judgment of a J ustice’s Court, and dismissing the appeal taken from such refusal to tax such costs.

The action was originally commenced in the Justices’ Court of the city of Troy, and was brought to recover damages for obstructing Van Schaick street, in that city. From the judgment there obtained by the plaintiff an appeal was taken to the County Court, where the case was re-tri ed and a verdict rendered in favor of the plaintiff.

The clerk refused to tax the plaintiff’s costs on the ground that no costs were taxable under section 3245 of the Code of Ciyil Procedure, for the reason that the complaint of the plaintiff demanded judgment for money only, and was not presented for payment to the treasurer of defendant, the chief fiscal officer of the defendant.1

*Henry A.*Merritt, for the appellant.

*R. A. Parmenter,*for the respondent.

By the Court :

One point which we understand was not suggested to the learned county judge seems conclusive. The defendant relies on section 3245 of the Code of Civil Procedure.^

*515Section 3317, subdivision 13, declares that title 1, of chapter 21 (which includes section 3215) applies only to an action in one of the courts specified in subdivision 1. Subdivision 1 does not specify a Justice’s Court.

The defendant, however, urges that although this action was commenced in a Justice’s Court, yet it was taken by appeal to a County Court, which is one of those specified in subdivision 1, and, therefore, that it is now an action in the County Court; and hence that section 3215 does apply. But we cannot agree with this view. When the plaintiff commenced this action in a Justice’s Court, she was not required to have previously presented the claim to the fiscal officer, at the peril of losing costs under section 3215. For we have seen that that section does not apply to Justice’s Courts. Now it would be an unreasonable construction to hold that the defendant, by appealing to the County Court, could change the plaintiff’s rights in this' respect, and could deprive her of costs for having failed to present her claim under that section. Nor would it be an unreasonable construction even to hold that subdivision 13, by its reference to subdivision 1, included the words in that latter section contained viz.: *“*An action *commenced in*the Supreme Court,” etc., and thus distinctly excluded actions commenced in a Justice’s Court.

We think the order should be reversed, with ten dollars costs and printing disbursements, and the determination of the clerk reversed, with ten dollars costs.

Present — Learned, P. J., Boardman and Potter, JJ.

Order reversed, with ten dollars costs and printing disbursements, and determination of the clerk reversed, with ten dollars costs.