#### MICHAEL JUDSON, Appellant, *v.*THE VILLAGE OF OLEAN, Respondent.

*Costs in an action for personal injuries*— *when not allowed unless a claim has been presented to the chief fiscal officer of a village*— *costs includes disbursements*— *Code of Civil Procedure, sec.*3245.

An action against a municipal corporation, to recover damages for a personal.' injury, falls within the provisions of section 3245 of the Code of Civil Procedure, providing that costs cannot he awarded to the plaintiff unless the claim-*159upon which the action is founded was, before the commencement thereof, presented to the chief fiscal officer of the corporation for payment.

The word “costs” includes disbursements.

*It seems,*that a failure to comply with the requirements of this section is not. excused by proof that the chief fiscal officer has no authority to adjust and pay the claim on presentation.

Appeal from an order of tbe Erie Special Term, denying the-plaintiffs motion to compel the clerk of Cattaraugus county to tax Ms costs and disbursements in the above entitled action. '

*George II. Phelps,*for the appellant.

*Fred. W. Kruse,*for the respondent.

Haight, J.:

This case was brought to recover damages for personal injuries» The defendant is a municipal corporation. The plaintiff recovered a verdict for $4,000. The claim up on which the action was founded was never presented to the chief fiscal officer or any other officer of the corporation for payment.

It is contended, on the part of the appellant, that actions arising out of claims *ex delicto*are not required to be presented to the chief fiscal officer for payment. This was undoubtedly the case under chapter 262 of the Laws of 1859, in cases where the charter of the municipal corporation did not give the power to the chief fiscal officer to audit and pay such claims. Section 3245 of the Code of Civil Procedure provides “that costs cannot be awarded to the plaintiff in an action against a municipal corporation in which the complaint demands a judgment for a sum of money only; unless the claim upon which the action is founded was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation.” An action to recover damages for a personal injury is an action in which the complaint demands judgment for a sum of money only, and is consequently within the express provisions of the section. In this regard it is more comprehensive than the act of 1859. This question has recently been 'considered by the General Term of the Third Department in the case of *Dressell*v. *City of Kingston*(32 Hun, 526), in which case the conclusion was reached that this section of the Code covered actions *ex delicto*as well as claims founded on contract. In that case the *160members of tbe court differed as to what was meant by tbe chief fiscal officer. Bockes, J., dissenting, was of tbe opinion that tbe presentment of tbe claim to tbe mayor and common council for payment was a sufficient compliance with tbe Code. This view was recently adopted by this court in tbe case of *Grier*v. *The City of Lockport*(21 N. Y. Weekly Dig., 444). This question, however, does not arise in tbe case under consideration, for tbe claim was not presented to any officer.

Again, subdivision 12, section 3, title 3 of tbe defendant’s charter (chap. 110 of 1882) gives to the board of trustees the power to audit all accounts and claims against tbe village, and order the payment of such as shall be allowed. Section 2 of title 7 authorizes tbe board of trustees to raise such further sum or sums of money, in any year, by a general tax as they may require, so that .under tbe provisions of tbe charter tbe board of trustees bad tbe power to audit and order tbe payment of tbe plaintiff’s claim, and also bad tbe power to raise tbe necessary money to make tbe payment. Tbe question is not, therefore, open to tbe argument that tbe presenting of tbe claim would have been useless, for tbe reason that tbe officers had no power to audit or allow tbe same. Tbe case of *Baine*v. *The City of Rochester*(85 N. Y., 523) we do not regard in point, for tbe reason that tbe claim in that action arose out of contract, and yet tbe court, in construing tbe section of tbe Code in question, distinctly held that it was no answer to tbe requirements of tbe section that the fiscal officer was not authorized to adjust and pay tbe claim on presentation. We are consequently of tbe opinion that tbe presenting of tbe claim to tbe chief fiscal officer of tbe defendant’s corporation for payment, before tbe commencement of tbe action, was a condition precedent to tbe right to be awarded costs, and that tbe word costs covers tbe disbursements.

Tbe order should bo affirmed, with ten dollars costs and disbursements.

SMrm, P. J., BARKER and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.