Silas L. King, Respondent, v. The Village of Randolph, Appellant

Silas L. King, Respondent, v. The Village of Randolph, Appellant. Costs—presentation of a claim, for work done under a contract with a board of water commissioners of a village. The presentation of an unverified account to the treasurer of a hoard of water commissioners of a village is not a compliance with section 3245 of the Code of Civil Procedure, requiring the presentation of a claim against a municipality before bringing suit thereon, nor with section 10 of title 3 of chapter 291 of the Laws of 1870, as amended by chapter 357 of the Laws of 1872, requiring claims against a village to be verified, and does not entitle the claimant to costs on his recovery of judgment in an action subsequently brought against the village under section 18 of chapter 181 of the Laws of 1875, as amended by chapter 527 of the Laws of 1890, for the enforcement of his claim. Appeal by the defendant, The Village of Randolph, from an order of the Supreme Court, made at the Cattaraugus Special Term and entered in the office of the clerk of the county of Cattaraugus on the 17th day of November, 1897, as amended by an order made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 13th day of December, 1897, denying the defendant’s motion for an order directing that the record herein be corrected by striking from the judgment entered in the action the award of $181.26 adjudged to the plaintiff herein .as costs and disbursements of the action. The facts in this case are undisputed. The defendant was organized under the General Village Law (Chap. 291, Laws of 1870) of this State. In the year 1895, and since that time, it had a board of trustees of the village, a village treasure]' and a board of water commissioners. The members of these two boards and the village treasurer were elected by the voters of the village. The board of water commissioners had a treasurer, selected, as required by statute, from among its own members. The water plant was owned by the village. In 1895 the defendant, through its board of water commissioners, contracted with plaintiff to build a' reservoir, to be used in connection with the water system of the village. The plaintiff proceeded with the work under the contract, and, in 1896, claimed to have completed the same. The treasurer of the board of water commissioners requested plaintiff to present a statement of his-account. After this request had been made several times, the plaintiff handed to the treasurer of the water commissioners a-statement of such account, itemized as to the work done, showing the amount thereof to be the sum of $3,781,40, and crediting thereon as follows: “By cash, $2,715.00.” The account was-not verified, The balance claimed was not shown, except so far as it could be ascertained by computation. Within two or three days-after the delivery of such account, and on the 28th day of July, 1896,. this action was commenced. No notice of plaintiff’s claim was'ever given to -the board of village trustees, nor to the village treasurer.. They had no notice of this claim of plaintiff, from any source, previous to- the commencement of this action. Issue was joined by the parties to the action, and the case was referred to a referee to hear, try and determine. Such trial was had, and the referee found in favor of the plaintiff; his conclusions of law are as follows: “ As conclusions of law I find and decide that the plaintiff is entitled to recover of the defendant the sum of five hundred fifty-four dollars and sixteen cents, and judgment is directed accordingly.” No costs were allowed by the referee. Thereafter, judgment was entered for the amount found by the referee and also for $181.26 costs. Notice was thereafter served upon defendant’s attorneys for retaxation of costs.. This was opposed by the defendant, but the clerk retaxed the costs at the original amount, as inserted in the judgment. The defendant thereupon made a motion, at a Special Term, for an order modifying the judgment by striking therefrom the costs so awarded. The motion was denied, and from the order denying the same, this appeal is taken. Crowley Wentworth, for the appellant. James G. Johnson, for the respondent. [MAJORITY — Green, J.:] Green, J.: It is provided by section 3245 of the. Code of Civil Procedure 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.” In the disposal of this appeal, therefore, the sole question to be decided is, whether the plaintiff fulfilled this requirement of the statute by presenting an unverified account .to the treasurer of the board of water commissioners of the defendant. If this requirement has not been fulfilled on behalf of the plaintiff, he is not entitled to costs, for “ costs are a creation of the statute and can be awarded only in cases which are clearly brought within the statutory provision.” (Patterson v. Burnett, 17 Civ. Proc. Rep. 115,118.) The referee before whom the case was tried awarded no costs to the plaintiff. Plaintiff is not entitled to costs under the general provisions of the statute relative to awarding costs, to a successful party, as those general provisions are modified by the subsequent provision of the statute above quoted. The claim of the plaintiff, however, is that the actual defendant in this action is not the corporation of the village of Randolph, but the board of water commissioners of the village of Randolph; and that, therefore, section 3245 of the Code of Civil Procedure has no application to this case, as the defendant is not a municipal corporation. I quote from respondent’s brief: “ The board of water commissioners is a quasi corporation (Grant vs. Fancher, 5 Cow. 309), a corporation sub modo (Rouse vs. Moore, 18 John. 407), and permitting it to use, for the purpose of this action, the name of the village, did not make the action one against the village corporation; it was still an action against the board of water commissioners of the village of Randolph.” The cases cited by the learned counsel were decided previously to the original act authorizing the formation of the board of water commissioners (Chap. 181, Laws of 1875). There is no provision in that act. which permitted action against the board, or against the members of the board in their name of office but section 18 of the act provided that “ all judgments against said commissioners in their name of office, and all judgments against them, where the transaction upon which the action was brought shall have been in the performance of their duties as commissioners, shall not enforced against the individual property of either-of the said commissioners.” This act received consideration and construction in Fleming v. Village of Suspension Bridge (92 N. Y. 372), where the court used this language.: “It will thus be seen from this analysiof the act that the board of water commissioners is not a corporation. There is no provision in the act authorizing the commissioners to sue or to be sued as a board. The board is, at all times, composed of the trustees of the village, cmd the water commissioners are manifestly the agents of the village. The water works are local improvement, exclusively for the benefit of citizens of the village. , They are to be constructed- upon the credit of the village, are to belong to it when constructed, and the title to all the land taken is vested in it. The rents received for the use of the water belong to it, and the entire expense of constructing the water works is a charge upon it. It was, therefore, immaterial, whether in making this contract the water commissioners made the same in the name of the village as they did, or in.their own official names as water commissioners, or as a board of water commissioners. village became bound by their act, and for this conclusion the cases of Appleton V. The Water Commissioners (2 Hill, 432); Bailey v. The Mayor, etc., of New York (3 id.. 531; S. C., 2 Den. 433), and Sage v. The City of Brooklyn (89 N. Y. 189) are ample authority. Any other construction of the act might practically leave a contractor performing the work without any remedy. It is expressly provided., that he shall have no remedy to be enforced against the individual property of either .of the commissioners, and if he has remedy against the village it would be quite difficult to see how payment for work done under the act could be enforced. It clearly to- be inferred, from the fact-that the commissioners exempted from individual liability, that it was the intention of the Legislature to impose the liability upon their principal, the village.” After the decision in this case, section 18 of the act of 1875 was amended (Chap. 527, Laws of 1890) by providing that “ the board of water commissioners of any village may sue, complain or defend, in any court, in the name of said village, in any action to enforce any contract with said board, or to enforce any claim for damages, water rents, labor or supplies, connected with the building, or carrying on, of the water works by said board. The complaint or answer of said village, in such actions, shall be verified by the oath of some member of the board. The complaint in action against such village,' in such cases, shall be served on the water commissioners, whose duty it shall be to defend in the name of the village.” This amendment was declaratory of the law as established by the decision in 92 New York, 372 (supra), so that, under the original act and under the amendment, the liability, in such an action as the one at bar, rested upon the municipal corporation and npt upon the board of water commissioners nor the individual members thereof. Duties are imposed by the statute upon the water commissioners in respect to such action. The action itself is- against the village, and any judgment obtained therein can be enforced against it. The board of water commissioners is intrusted with certain duties and given permission to make certain payments. But when it is claimed that moneys due under contract with the water commissioners are unpaid and owing to a contractor, and it becomes necessary for such contractor to enforce, by legal proceedings, the payment of such claim, the action must be brought against the municipal corporation. Before commencing such an action against such a defendant, he must conform to the provisions of the statute and fulfill the conditions precedent established thereby, if he seeks to recover his costs in the action. This the plaintiff has not done; his claim was against the village; and it is provided that “ the trustees shall have the auditing of all accounts and claims against the village.” (§ 9 of title 3 of chap. 291 of Laws of 1870, as amended by chap. 440, Laws of 1889.) “No such account or claim shall be allowed by the trustees, unless it shall be made out in items and accompanied by the affidavit of the person claiming to have rendered services, * * * that the items of such account or claim are correct, * * * and no part of such claim has been paid.” (§ 10 of title 3 of chap. 291, Law's of 1870, amended by chap. 357, Laws of 1872.) The trustees of the village, charged with the duty of auditing accounts, after the same had been properly presented, were not, preceding the commencement of this action, given any notice whatever that the plaintiff had a claim against the defendant. Neither was any notice thereof served upon or given to the treasurer of the defendant. The plaintiff is chargeable with knowledge of all these provisions of law governing the defendant and its hoard of water commissioners, with whom he contracted. (Donovan v. The Mayor, etc., 33 N. Y. 293.) Knowing this, the plaintiff has neglected to fulfill the requirements which would entitle him to recover costs against this defendant. We are of the opinion that the Special Term erred in not granting the application of this defendant. The order is reversed, with ten dollars costs and disbursements, and motion granted. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted.