#### SWEET v. CITY OF BUFFALO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

'Municipal Corporations—-Auditing op Claims—Waiver of Defective Proof. Buffalo City Charter (Laws 1891, c. 105), §§ 15,16, provide that all claims for damages against the city shall be filed, duly verified, with the city clerk, to be audited by the council, and that no action shall be brought on a claim until 40 days after it is filed; that, if -not properly made out and- verified, the claim may be rejected by the council on that ground within 30 days after its presentation. *Held,*that the time within which a claim could be rejected on that ground was limited to 30 days from its filing, and, if not objected to within that time, the form and verification would be deemed sufficient.

Appeal from circuit court, Erie county.

Action by Zeicha Sweet against the city of Buffalo for personal. injuries. From a judgment entered on a verdict in favor of plain*761tiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.

Argued before LEWIS, BEADLEY, WAED, and ADAMS, JJ.

Charles L. Feldman, for appellant.

L. L. Lewis, Jr., for respondent.

BRADLEY, J.

The purpose of the action was to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. The evidence was sufficient to permit the court to submit the questions of negligence of the defendant and of contributory negligence of the plaintiff to the jury, and to support the verdict. The further question arises upon the provisions of the city charter that:

> “The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk, * * * and if for damages for wrong or injury when, where and how occasioned, and shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made and that no set off exists except those stated.” Laws 1891, c. 105, § 15.

Also that:

> “No action or proceeding to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been filed with the city clerk for presentation to the common council for audit, in the manner and form aforesaid. * * * If the claim be not made out and verified as above required, the board of aldermen may within thirty days after its presentation refuse on that ground to audit it.” Laws 1891, c. 105, § 16.

The claim of the plaintiff was filed with the city clerk on April 18, 1893, and on the 22d day of May following the claim was denied by the board of aldermen on the ground that the affidavit of verification was defective. The claim was presented in the form of a petition, which contained all that was essential for such purpose. The affidavit annexed to it was “that the said petition is true, and the whole thereof.” This was not a full compliance with the statute. As has been seen, the statute permits the board of aider-men on that ground to refuse within 30 days after the presentation of a claim to audit it. The filing of the claim with the city clerk was a presentation to the board. Murphy v. City of Buffalo, 38 Hun, 49. The purpose of the statute evidently was to require adverse action of the board, founded upon defects in an affidavit of verification within that time, so that the claimant might not be prejudiced by further delay in making another presentation of his claim supported by his corrected affidavit. It would seem that this provision of the statute limits the time within which the board can, for such defect, reject a claim, and, as the consequence, that unless the objection is taken by the board within the 30 days, it is not available for any purpose after the expiration of such time. This is a reasonable interpretation of the purpose of the statute in that respect, and, as the claim was not rejected within 30 days after its presentation, the defect in the affidavit is not tenable to •defeat the action.

The judgment and order should be affirmed. All concur.