Edlux Construction Corp. v. State

Hill, P. J.

The State, appealing from a judgment of the Court of Claims in favor of claimant, asserts that the claim is based on a breach of contract by the State which occurred on or prior to May 4, 1933, and that there may not be a recovery as notice of intention to present a claim was not filed until January 28, 1935. Section 15 of the Court of Claims Act provides: “ A claim for breach of contract * * * shall be filed within six months after the accrual of such claim.” The contract which is the basis for the claim was approved by the Department of Public Works on December 28, 1932. The work was to be completed on or before March 1,1933. Claimant, for justifiable reasons, abandoned the work on May 4, 1933. Final payment could be made only upon the certificate of the Superintendent of Public Works showing the amount of the final estimate payable to the contractor, and further, that the contract had been finally completed in accordance with the plans and that all laborers employed on the work had been paid. Such a certificate and estimate, approved by the engineer on October 27, 1934, and delivered to the claimant on the thirtieth of that month, stated that $2,259.69 was due to claimant. He receipted therefor, “ reserving the right to file a claim in the Court of Claims ” for the balance which he claimed to be due. The Comptroller in December refused to pay any amount. The claim was filed January 28, 1935.

“ The expression ‘ claim accrued ’ is not identical with the expression ‘ cause of action accrued.’ The claim accrues when it matures, and the words ‘ claim accrued ’ have the same meaning as ‘ damages accrued.’ ” (Dufel v. State of New York, 198 App. Div. 97, 102.) In Morrison & Quinn, Inc., v. State of New York (204 App. Div. 623) a lock which claimant was constructing was flooded on February twenty-sixth through the negligence of the State. The claim was filed more than six months after that date. The opinion states: “ The damages could not be ascertained until the water had been pumped out, and that process occupied the time from the date of the setting back of the waters until March third * * *. When the lock that appellant was building was pumped out, and it was able to take an account of the situation, then and not till then was the extent of the damage ascertained, and at that time the claim accrued ” (p. 627). In Paduano v. State of New York (203 App. Div. 503) claimant was the lessee of a stone quarry adjacent to the Barge canal from which water leaked into the quarry to an extent that made it impossible to conduct quarrying operations. The opinion states: “ The claim could not accrue until the claimant discovered by an attempt to quarry the stone that he was prevented therefrom by the negligent act of the State, and six months had not elapsed after that time before the notice of intention to file claim was filed ” (p. 507). The Court of Claims in Waples Co. v. State of NewYork (16 Ct. Claims, 54) stated that a claim did not accrue until “ the State Architect certified the final payment.” The judgment was affirmed by the Appellate Division (178 App. Div. 357).

A cause of action accrues and the Statute of Limitations begins to run when a contract is breached (Northrop v. Hill, 57 N. Y. 351), or when one omits the performance of an obligation (Bank of Utica v. Childs, 6 Cow. 238; Argall v. Bryant, 1 Sandf. 98; Campbell v. Culver, 56 App. Div. 591), although damages may not accrue until a later date. But the Statute of Limitations does not begin to run until there is opportunity to enforce the obligation. (Civ. Prac. Act, art. 2.) There is not one law for the sovereign and another for the subject (People v. Stevens, 71 N. Y. 549), and a cause of action came into being in this case when the contract was breached by the State. “ Therefore, a breach of its contract by the State creates a valid cause of action. Immunity of the State from suit merely prevents its enforcement. When, however, the State confers upon a court jurisdiction to hear and determine all claims against it, or all claims of a particular class, the situation in that court is the same as if the claim were against a private individual or corporation.” (Quayle v. State of New York, 192 N. Y. 47, 50.) When the Quayle case was decided the present last sentence of section 12 of the Court of Claims Act read: “But the court has no jurisdiction of a claim submitted by law to any other tribunal or officer for audit or determination,” and it was determined that the remedy of a claimant whose claim under an express contract had been audited and rejected by the Comptroller was by certiorari to review his determination. After that decision the following words were added to the sentence (Laws of 1908, chap. 519), “ except where the claim is founded upon express contract and such claim, or some part thereof, has been rejected by such tribunal or officer.” The Comptroller is the general auditor of the State (People ex rel. Grannis v. Roberts, 163 N. Y. 70) and is required to “ examine, audit and liquidate the claims of all persons against the State, if payment thereof out of the treasury is provided for by law.” (State Finance Law, § 4, subd. 4.) Until audit by the Comptroller in December, 1934, there was no court in which suit could have been maintained on this claim, for the State may not be sued without its consent and then only at the time and in the court provided. (Nellis v. State of New York, 204 App. Div. 178; Pittsburg & Shawmut Coal Co. v. State of New York, 118 Mise. 50; Lupfer v. State of New York, Id. 601; M. L. Improvement Corporation v. State of New York, Id. 605.) It is absurd to contend that a Statute of Limitations within which a claim must be sued runs when there is no court or tribunal before which the State can be summoned to answer the suit. (Parmenter v. State, 135 N. Y. 154; Sanford v. Sanford, 62 id. 553.) The claim had not “ accrued ” and the Statute of Limitations did not begin to run until the audit and rejection. (§ 12, supra.) The filing of the claim during the month following the audit was timely.

The judgment should be affirmed, with costs.

Ckapser and Heffernan, JJ., concur; McNamee and Bliss, JJ., dissent and vote to dismiss the claim; McNamee, J., with an opinion in which Bliss, J., concurs.