#### TIMOTHY MURPHY, Respondent, *v.*THE CITY OF BUFFALO, Appellant.

*Claim, against the city of Buffalo*— when *a presentation of it to the clerk of the common council thereof is treated as a presentation of it to that body*— 1870, *chap.*519, *tit.*3, *sec.*7.

The presentation of a claim against the city of Buffalo to the clerk of the common council thereof, is a presentation of the claim to the common council within the meaning of section 7 of title 3 of the charter of the city, which provides that no action or proceeding to recover or enforce a claim against the city shall he brought until the expiration of forty days after the claim “ shall have been presented to the common council for audit.”

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury rendered at tbe Erie Circuit, and from an order of tbe Erie Special Term denying a motion for a new trial made on a case and exceptions.

*Sermcm Hewrvig,*for tbe appellant.

*Frank F. Sickles,*for tbe respondent.

Haight, J.:

Tbis action was brought to recover for personal injuries claimed to bave been received by tbe plaintiff by reason of a defective sidewalk in tbe city of Buffalo. Tbe claim for damages by reason of sucb injury was made out and delivered to tbe city clerk on tbe 23d day of November, 1888. Thereafter, and on December 17, 1883, as appears from tbe minutes of the common council as kept by the clerk, tbe claim of Timothy Murphy for injuries received was referred to tbe committee on claims.

Tbis action was commenced on January 8, 1884. More t.ba.n forty days bad elapsed after tbe claim was delivered to tbe clerk before tbe action was commenced, but there bad not been forty days intervening after tbe claim was referred by tbe common council to tbe committee on claims.

The only question presented by tbis appeal is whether or not tbe delivery of tbe claim to tbe clerk was a presentment of tbe claim to tbe common council for audit within tbe provision of tbe charter. (1870, chap. 519.) Title 3, section 7 of tbe charter, provides that *50
      *“*it (the common council meaning) shall audit all claims against the city, but no unliquidated claim shall be received for audit unless made out in detail, * •* * no action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council for audit in the manner and form aforesaid.” Section 48 of title 2 provides that “ the city clerk shall be the clerk of the city, of the common council and of the board of health. He shall, under the direction of the common council, make up a journal of its proceedings.” The common council is composed of the aider-men of the several wards of the city. They act together as a corporate body, and a majority are required in order to form a quorum. No individual alderman constitutes the council; laymen, except by the courtesy of the council, have not the privilege of the floor. So that, if the charier is to be construed literally, the claim would have to be presented to at least a majority of the aldermen in council assembled. This we do not understand to be the purpose or intent of the charter. The clerk keeps the minutes of the proceedings and has the custody of the papers belonging to the council. He is an officer of the council, chosen by itself for that purpose, and it apppears to us is a proper person to receive and take charge of the claims presented for audit.

The judgment and order should be affirmed.

Smith, P. J., Baekbe and JBeadley, JJ., concurred.

Judgment and order affirmed.