Buckles v. State

• Decision Date: 13 November 1917
• Parties: BUCKLES v. STATE.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 418

117 N.E. 811

BUCKLES

v.STATE.

Court of Appeals of New York.

Nov. 13, 1917.

Appeal from Supreme Court, Appellate Division, Third Department.

Claim by Mary J. Buckles, as administratrix, etc., against the State of New York. From a judgment of the Appellate Division, Third Department (175 App. Div. 677,162 N. Y. Supp. 517), reversing a judgment of the Court of Claims, which dismissed a claim made by the respondent, and awarding to her the full amount claimed, the State appeals. Reversed, and determination of the Court of Claims affirmed.

Merton E. Lewis, Atty. Gen. (Edmund H. Lewis, of Syracuse, of counsel), for the State.

O. A. Dennis, of Whitehall, for respondent.

McLAUGHLIN, J.

This appeal involves the question whether the Court of Claims has jurisdiction to hear and determine a claim against the state, where no notice in writing of intention to file a claim has been filed, as required by section 264 of the Code of Civil Procedure.

In 1912 the respondent's intestate, William Buckles, had a contract with the state for resurfacing a portion of a highway in the county of Washington. After he commenced work under his contract it was discovered that, owing to the condition of the highway, work and materials not covered by it were required to put it in a proper condition. Buckles was thereupon directed by the superintendent of repairs to perform the additional work and furnish the additional materials, or in default of that to abandon his contract. It was expressly provided in the contract that additional work or materials, if required, should be covered by a supplemental contract in writing, and when Buckles was directed to perform such additional labor and furnish such additional materials, he requested that a supplemental contract for that purpose be first executed. This the authorities representing the state refused to do, telling him that a written contract would not be executed until the work had been completed. Buckles then continued under his contract, performed the additional labor, and furnished the additional materials. The whole work was completed about the 1st of November, 1912. He was then tendered a supplemental contract, dated November 11, 1912, which he executed, and which was approved in writing by the superintendent of repairs; but a few days later Buckles died, and for that reason it is fair to assume the contract was never executed on the part of the state.

The work was inspected by the proper officers representing the state, and a certificate given that the contract, including the additional work and materials, had been fully performed, and he was entitled to receive from the state the contract prices. Since then it has not been questioned but that the value of the additional labor and materials, with a small balance unpaid under the original contract, amounting in all to $2,682.83, was due Buckles, and is now due his estate, and this is the amount for which the claim, with interest, was filed. For one reason or another, payment of this sum was delayed from time to time until a new highway commissionerwent into office, and on the 10th of February, 1914, he advised the respondent's attorney he would not sign the supplemental agreement, since he personally knew nothing about the matter, and that the claim would have to be presented to the Court of Claims. Thereupon, on March 30, 1914, the claim in question was filed with the then Board of Claims, now the Court of Claims (Laws 1915, c. 1), and with the Attorney General. Neither before nor after such filing, however, was there filed any notice of intention to file a claim, and the Court of Claims accordingly dismissed the claim on that ground, though the Deputy Attorney General, representing the state, conceded at the beginning of the trial that the only question involved was whether there could be a recovery, in the absence of a supplemental agreement in writing, and he did not raise the question of failure to file the notice until after the claimant had rested. The Appellate Division reversed the determination, one of the justices dissenting, directed judgment for the claimant for the full amount, and the state appeals to this court.

[1] Upon the record there can be no doubt as to the moral obligation of the state to pay the claim; but, notwithstanding that fact, I have, with much reluctance, reached the conclusion that the judgment must be reversed, and the claim dismissed. At the time the claim was filed, section 264 of the Code of Civil Procedure provided in part as follows:

‘No claim other than for the appropriation of land shall be maintained against the state unless the claimant shall within six months after such claim shall have accrued, file in the office of the clerk of the Board of Claims and with the Attorney General a written notice of intention to file a claim against the state, stating the time when, and the place where such claim arose and in detail the nature of the same, which notice shall be signed and verified by the claimant before an officer authorized to administer oaths.’

It is urged that this provision is similar to the familiar requirement of municipal charters to the effect that no action can be maintained against the municipality unless a notice of intention to sue has been filed within a specified time with the proper officers, and that it is thus, at most, a condition precedent, which can be and has been waived by the state in the present case. Standing alone it might possibly be susceptible of that construction, but the rest of section 264 and its history demonstrates conclusively, as it seems to me, that such construction cannot be maintained.

The requirement as to filing a notice...