252 A.D. 373, Edlux Construction Corp. v. State

• Date: 10 November 1937
• Docket Number: .
• Citation: 252 A.D. 373
• Parties: EDLUX CONSTRUCTION CORPORATION, Respondent, v. THE STATE OF NEW YORK, Appellant. Claim No. 23935.
• Court: New York Supreme Court Appellate Division. Third Department

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252 A.D. 373

EDLUX CONSTRUCTION CORPORATION, Respondent,

v.

THE STATE OF NEW YORK, Appellant. Claim No. 23935.

Supreme Court of New York, Third Department.

November 10, 1937

APPEAL by the defendant from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 6th day of May, 1937.

COUNSEL

John J. Bennett, Jr., Attorney-General [Leon M. Layden and Joseph I. Butler, Assistant Attorneys-General, of counsel], for the appellant.

James Gibson, for the respondent.

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

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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 A.D. 97, 102.) In Morrison & Quinn, Inc., v. State of New York (204 A.D. 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 A.D. 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 New York (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 A.D. 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 A.D. 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

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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 ^[a1] 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...