Nussbaum v. State , 104 N.Y.S. 527 ( 1907 )

Chester, J.:

The Court of Claims seemed to have dismissed the claim on the ground that no enabling act had been, passed by the Legislature, and, therefore, the State had not consented to have its liability for' the services performed determined by that court. There is no doubt of the proposition that a sovereign State . cannot be sued except by its own consent. This is too well settled to require the citation of authority in support thereof. We think, however, the State' gave its consent to be sued on claims of this character when it enacted section 264 of the Code of Civil Procedure. We have expressly so held in the recent case of Remington v. State of New York (116 App. Div. 522), which was a case where there was no enabling act passed by the Legislature giving its consent to be sued other than the section of the Code referred to. So long as that case stands unreveréed we must follow it.

It is altogether correct to say'that conferring jurisdiction upon the Court of Claims to hear a private claim does not create a claim against the State. The claim against the State in this instance was created when the Assembly authorized its committee to employ counsel and when pursuant.to that authority it made the employment and the services were rendered. When the Assembly thus made a contract and when the services under it were performed, there followed an implied agreement that the State would pay for the value of such services. The claim here accrued within two years and is a private claim arising on contract and just that kind of a claim the Court of Claims has jurisdiction to hear and determine under the section of the Code referred to.

It cannot be that after creating and conferring jurisdiction upon it to hear and determine a private claim against the State accruing within two years that an enabling act must be passed in addition to that in every case before the Court of Claims can hear and determine it and render judgment for such sum as should be paid by the State. The effort in Eew York State has for years been to do away with the necessity for special legislation. The Court- of' Claims is called upon to pass upon several hundred private claims in each year and if a special act is required to be passed by the Legislature before that court can hear any such claim the volume of special legislation would be increased to a Very great extent. Said section 264, giving the court its general jurisdiction to hear claims of this character, would be practically nullified, for there would he-no need of such general jurisdiction, as jurisdiction would have to be found in the special legislation relating to each specific case. The section referred to bears -upon its face a contradiction of the construction' put upon it by fhe Court of Claims, for it is there provided that “ where jurisdiction to hear and -determine a claim is conferred upon the court by a special law the liability of the State is not thereby implied.” This shows clearly that it was the legislative intent to confer a-general jurisdiction upon the court by the section and that the liability of the State was not to be implied .from a special act. It also shows that it was not the intention that a. claim should necessarily arise or- be created because a special act was passed or that a special act was required in every case. It is a matter of common knowledge that special legislation is sought and is necessary in many cases to avoid the short Statute of Limitations and for other reasons that might be suggested, but we think the Court of Claims has ample jurisdiction to determine the claim in question here without any special act giving the consent of the State to be sued, and, therefore, .that the judgment should be reversed, with costs to the appellant, and a new trial granted.

All concurred.

Judgment reversed, with costs, and new trial-granted.