In re Mayor

69 N.Y.S. 178

Opinion

McADAM, J.

The applicant’s demand comes under chapter 393 of the Laws of 1896, which, among other things, provides that “no such expenses and disbursements shall be paid until they have been taxed before a justice of the supreme court in the First judicial district upon five days’ notice to the counsel of the corporation.” Section 2. The applicant’s fees were taxed under tMs section at $4,000 on March 1st last, and became for the first time an enforceable charge against the city; so that his claim for interest since.October 1, 1899, is without warrant in law. In reacMng this conclusion the court has in mind the fact that the authorities apply a different rule to the case of a municipality from that which is applicable where the debtor is a private person. The individual is bound to seek his creditor, and pay the debt when it becomes due; whereas a municipal corporation may require a demand before subjecting itself to the burden of interest. See cases collated in Holihan v. City of New York, 33 Misc. Rep. 249, 68 N. Y. Supp. 149. When a certified copy of the order is served on the proper municipal officer, a legal demand will have been made. On the question of costs and allowance it is evident that the application is not a special proceeding, within the meaning of the statute (Code, § 3334). It is not made under the general law, but under a special statute (In re City of Brooklyn, 148 N. Y. 107, 42 N. E. 413); so that merely motion costs, namely, $10, can be granted (Code, § 768). Order settled in accordance herewith.