White v. Brownell.

who are to take cognizance of and exercise jurisdiction over all claims and matters in difference between mem bers, and whose decision is to be binding upon them, that would seem to be the appropriate tribunal in this body to investigate and decide whether a member is or is not in default-the more especially as provision is made for reviewing and correcting the decision, if erroneous, by an appeal to another tribunal of the board, called the board of appeals. When a claim, therefore, is made by one member upon another, and he brings the matter in difference before this arbitration committee, and they, after having notified the other, and afforded him the opportunity of being heard, investigate the claim, and decide that the other party is in default, that is, in my judgment, a "due investigation" within the meaning of the law. It never could have been the design of the bylaw that the committee on membership are also to sit in deliberation upon the matter, and investigate it over again, before they are authorized to report to the president that the member is in default. It is due investigation on their part when they inquire and ascertain that the arbitration committee, whose decision is binding and subject to review, have decided, in a matter legitimately before them, that a member is in default. A second investigation would be superfluous, and was not, in my judgment, contemplated by the by-law.

The plaintiff avers, upon information and belief, that some of the members of the arbitration committee were already prejudiced against him, having repeatedly expressed an opinion favorable to Currie, Martin & Co.; to which ground of complaint there are several answers. In the first place, this allegation is too general and indefinite. The names of the members referred to are not given. It is not known whether they are or not defendants in this suit; so that this allegation is incapable of a specific denial by answer on the part of those who could alone make it; in addition to which, the president, in his answer, denies, so far as he has any knowledge or information, that any member or officer of the board has at any time taken

White v. Brownell.

any side or combined, or in any manner acted with or at the instigation of Currie, Martin & Co. against or to the prejudice of plaintiff, or interfered in any way or manner, except so far as the constitution and by-laws required them to.

In the second place, the plaintiff did not, when notified to appear before the committee, place his objection upon any such ground, but his written protest against the action of the committee was put upon the ground that no matter of difference had arisen between Currie, Martin & Co. and himself; that that firm had no claim against him of any kind, and that nothing has arisen under the contract calling for the action of the committee; in which he was mistaken; for a matter in difference had arisen between him and Currie, Martin & Co., and he and they differed in their understanding of the contract. They acted upon their construction of it, and the result was a claim by them against him, under it, for a large sum of money, which claim they brought before the committeethe committee having, under the constitution, cognizance over all claims between members, so that something had arisen calling for the action of the committee.

And, in the third place, if some of the committee were, as the plaintiff supposes, prejudiced against him, and had, before taking any action in the matter, expressed opinions favorable to Currie, Martin & Co., the action of the committee was not final. The plaintiff could have appealed from their decision, if it were erroneous or unjust, to the board of appeals, and he should have resorted to the remedy provided for him within the board, before he could ask a court of equity to interfere upon the ground that the arbitration committee were prejudiced against him.

For these reasons I am of the opinion that the proceedings upon the plaintiff's suspension were regular; that they were in accordance with the constitution and by-laws; that nothing has been shown that would authorize this court to interfere; and that Judge VAN

McClure v. Supervisors of Niagara.

VORST was right in dissolving the injunction at special term.

BRADY, J., Concurred.

BARRETT, J., having been of counsel in the cause, while at the bar, took no part in the decision.

McCLURE against THE SUPERVISORS OF NIAGARA COUNTY.

Court of Appeals; September, 1867.

APPEAL. -ORDER ALLOWING COSTS.

An order of the general term, affirming an order of the special term allowing and adjusting costs, is not appealable to the court of appeals.

It seems, that the provisions of Laws of 1859, ch. 262, § 2,—that no costs, &c., shall be recovered against a municipal corporation unless the claim was presented for payment to the chief fiscal officer of the corporation, before the suit,—does not apply to actions for unliquidated damages arising ex delicto;-e. g., to a claim for damages for property destroyed by a mob.

Appeal from an order.

G. D. Lamont, for the appellants.

P. L. Ely, for the respondent.

DAVIES, Ch. J.-In the supreme court the plaintiff recovered judgment against the defendants, and the costs were adjusted by the clerk at the sum of $206.77. The defendants appealed therefrom to the special term, where such allowance and adjustment were affirmed, and that

McClure v. Supervisors of Niagara.

order was affirmed at the general term. From this order the defendants appeal to this court.

The defendants claim that the plaintiff is not entitled. to costs, by reason of the provisions of section 2 of chapter 262 of the laws of 1859. That section declares, that "no costs, fees, disbursements, or allowance shall be recovered or inserted in any judgment against municipal corporations, unless the claim upon which such judgment is founded, shall have been presented for payment to the chief fiscal officer of such corporation, before the commencement of an action thereon."

The suit is brought for damages sustained by the plaintiff for the destruction of her property by a mob or riot, and to enforce the liability of the county therefor, under chapter 428 of the laws of 1855.

The claim upon which the action was founded was not presented for payment to the county treasurer of Niagara county, nor to any officer of the county, nor to the board of supervisors of said county, before the commencement of the action thereon.

The order is clearly not appealable to this court. It is not a final order affecting a substantial right in an action after the judgment. It is part of the judgment itself; and if appealable at all, is reviewable by this court only upon an appeal from the judgment. It is not an order which in effect determines the action and prevents a judgment. The case of Clarke v. City of Rochester (34 N. Y., 355), is quite decisive of this view; and the appeal should therefore be dismissed, with costs.

I think that upon the merits the order should be affirmed. This provision in the act of 1859, was clearly intended to protect municipal corporations from the payment of costs for demands which in their nature were capable of audit, and which the authorities were authorized to pay on presentation and adjustment. The intent of the statute is plain. It could never have contemplated that claims sounding in damages, the amount of which could only be ascertained by an investigation and the examina

McClure v. Supervisors of Niagara.

tion of witnesses, should have been presented for payment before suit brought.

Two questions would always immediately arise: 1. The corporate liability; and 2. The amount of damages. A claim of the character like that in controversy in this action is not within the meaning and intent of section 2 of the act of 1859. Such were the views of this court in the case of Howell v. City of Buffalo (15 N. Y., 512). The charter of that city contained a similar provision to that found in section 2 of the act of 1859. The plaintiff sued the corporation of Buffalo for taking and conveying away and converting to its own use certain bank notes, of the value of $355, the property of the plaintiff. The provision in the charter was: "It shall be a sufficient bar and answer to any action or proceeding in any court, for the collection of any demand or claim, that it has never been presented to the council for audit or allowance." It appeared that the demand or claim of the plaintiff had never been presented to the council for audit and allowance, and the corporation claimed that consequently the plaintiff was not entitled to recover.

The court held that claims arising ex delicto were not required, by this section of the charter, to be submitted for examination and audit to the common council before action brought.

We are cited to a decision of the general term of the second district (36 Barb., 226), holding a contrary doctrine. That court was of the opinion that the provisions of section 2 of the act of 1859 were applicable to claims on account of the negligence or misconduct of the city authorities, as well as to demands upon contract.

This learned court does not seem to have had its attention called to the case of Howell v. City of Buffalo (supra). If it had, we are to assume its decision would have been conformed to it.

We cannot regard this case as an authority for departing from the principle enunciated by this court in the case of Howell v. City of Buffalo; and if we were called upon to pass upon the merits of the order ar pealed from, we should