McClune v. Cain. ing the father in this manner, and he would not be a mere volunteer loaning his credit to another without advantage to himself. The case of Taylor v. Perkins, 26 Wend. 124, is not controlling, as authority, in this case; it is unlike it in most important particulars. That was a case where one made and assumed advances to aid another in carrying on business, without any benefit or advantage to him who made the advances, and where the person receiving the advance, claimed and held himself out to be the owner of the property. True, there was a verbal agreement between the parties that the party thus advancing means should have the control and disposition of the property acquired by the means furnished, but the party advancing the means, and allowing the business to be conducted in the name of the borrower, gave him a false credit, and the creditors so trusting were held to have the superior right. The distinction is plain. I am clearly of opinion that the court below were in error in reversing the judgment, and that their judgment should be reversed. WRIGHT, J.-I think the proper disposition was made of the case at the circuit. It was admitted that the property had been taken and sold by direction of the defendants. To entitle the plaintiff to recover, it was only required of him to show that he was the owner of it when converted. This he did; or at least the testimony adduced by him on the question of ownership was such, that it would have been an error in the judge to have granted a nonsuit, or what was the same thing in effect, to have complied with the request to instruct the jury, as matter of law, that snch testimony showed that he had no title to the property. [Here the learned judge stated the facts in the case, as above:] In view of these facts, there is no force in the suggestion that the judge should have nonsuited the plaintiff. On the contrary I think, it would clearly have been error to have determined as matter of law, that he had shown no title to the property in controversy, which the judge must necessarily have done had he granted the motion. Stress might be laid on the circum McClune v. Cain. stance that the purchase and shipment of the particular property to the New York market, was a mere speculatory venture -an isolated transaction; and the goods no part of the stock in trade of the grocery, which the defendants insist was established and conducted solely for the benefit of the plaintiff's father. That business did not consist in buying produce to resell in the New York market. But treating the transaction as being in some way parcel of the grocery business, the question recurs, was the plaintiff or William G. McClune the purchaser of the property converted? On this question the proof tended but one way. William G. McClune himself was the principal witness, and he testified distinctly that he bought the property for and on account of the plaintiff. The vendors corroborated him in his statements, and the plaintiff likewise, for he ratified his agency in the matter by subsequently paying the purchase money in whole or in part. The claim made on the trial, and reasserted here, that the goods were not bought by the plaintiff, but by William G. McClune, the father, with money borrowed on the plaintiff's credit, rests not, as is asserted, "on admitted" facts. William G. McClune, it is true, was the actor in making the purchases, but whether he made them as plaintiff's agent and for him, or for himself, was the point in dispute. To have held that he acted for himself, and not for the plaintiff, in this particular transaction,-that no case of agency was shown, but that McClune himself was the purchaser, and the plaintiff occupied the relation only of his creditor,—would have been clearly against the whole drift of the evidence. Again, if it were conceded that the property, the title to which is involved in this case, was brought as part of the stock in trade of the grocery, it would not follow as a legal consequence that William G. McClune, and not the plaintiff, was the owner of it. I apprehend it was competent for the plaintiff to have established the grocery, provided the means, and made his father his agent for carrying it on, and given the latter the entire proceeds. Such an arrangement would not make the father the owner of the property brought into the business, nor would the plaintiff be exonerated from liabilities incurred by his agent within the scope of the business. This is claimed, on one side, to have been the real nature of the transaction. McClure v. Supervisors of Niagara. On the other, it is insisted that the case showed William G. McClune to have been the principal in the business, the plaintiff merely loaning to him his credit, and that the only relation existing between them was that of debtor and creditor. I think the evidence preponderated in favor of the former instead of the latter view of the case; but it is quite enough that there, was any question on the subject. The order granting a new trial should be reversed, and the judgment of the special term affirmed. A majority of the judges concurred. Order reversed, and judgment for plaintiff on the verdict, with costs. McCLURE v. THE SUPERVISORS OF NIAGARA. December, 1867. Approving 50 Barb. 594; S. C., 33 How. Pr. 202. 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 L. 1859, p. 570, 262, § 2,—that no costs, &c., shall be recovered against a municipal corporation unless the claim was presented for payment to the chief 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. Melinda J. McClure sued the Board of Supervisors of the county of Niagara, in the supreme court, to recover from the county damages under the statute (L. 1855, c. 428, 3 R. S. 5 ed. 874), for her property, destroyed by a mob. The statute referred to provides that whenever any property "shall be destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by, or in behalf of, the party whose property was thus destroyed or injured, for the damages sustained by reason thereof." § 1. Other clauses of the act provide that such actions may be brought and conducted in the same man * But see Code of Pro., § 11, as amended in 1870. McClure v. Supervisors of Niagara. ner as other actions may be by law, but must be brought within three months after the loss or injury; and that, on a recovery, the treasurer of the city or county must, on production of a certified copy of the judgment, pay the same. In this action, the plaintiff recovered judgment; but, on adjustment of costs, the defendants objected that she was 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 said corporation, before the commencement of an action thereon." 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 clerk overruled the objection, and allowed the plaintiff her costs, &c., taxing them at two hundred and six dollars and seventy-seven cents. The supreme court, on appeal, affirmed the taxation, upon grounds substantially the same as those assigned in the opinion in this court. Reported in 50 Barb. 594; S. C., 33 How. Pr. 202. Defendants appealed. George D. Lamont, for defendants, appellants. P. L. Ely, for plaintiff, respondent. BY THE COURT.-DAVIES, J. [After stating briefly the facts, and the act of 1859.]-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, it 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 McClure v. Supervisors of Niagara. 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 examination of witnessess, should have been presented for payment before suit brought. 1859. 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 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 three hundred and fifty-five dollars, 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. That We are cited to a dicision of the general term of the second district (36 Barb. 226), holding a contrary doctrine. court was of the opinion that the provisions of section 2 of the act of 1859 were applicable to claims on account of the |