Corkings v. State

Citation99 N.Y. 491,2 N.E. 454
PartiesCORKINGS v. STATE.
Decision Date06 October 1885
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

DANFORTH and MILLER, JJ., dissent.

Martin A. Knapp, for appellant, Philip Corkings.

D. O'Brien, for the State.

EARL, J.

On the nineteenth day of August, 1873, the plaintiff entered into two contracts with the state for work upon the Erie canal, and deposited two sums of money, amounting to $1,800, as security for the performance of the contracts, under chapter 766, Laws 1873. That chapter (page 1170) provided that, ‘upon the entering into said contract, the bonds or stocks or money required by the commissioners as security for the entering into said contract, together with such additional securities as they may require, may be held as security for the completion of the work, and shall be deposited with the treasurer as a special trust, to be returned by him to the contractor with such further sums as he may have realized for the use thereof, when the commissioner in charge and the state engineer shall certify that the contractor has fully completed his contract, and that the state has no further claim upon such funds.’

The board of claims found that prior to August 1, 1874, the plaintiff duly performed and completed both contracts in full compliance with their terms and provisions; that his work was in all things duly accepted and approved by the officers and agents of the state; that a final accounting thereof was made on or about August 10, 1874; that by the laws of the state it was the duty of the officers and agents of the state, upon such final completion and settlement of the contracts, to repay to the plaintiff the two sums of money deposited, with interest at the rate of 6 per cent. from August 10, 1874; that no part of the principal or interest has ever been paid to him; that the $1,800 became due and payable August 10th; that plaintiff's claim was filed with the state board of audit, May 13, 1882; and that there was no proof that he ever made any claims for the payment of his deposits prior to that date. And the board found that more than six years had elapsed between the time when the money was due and payable by the state to the plaintiff and the time when the claim was so filed with the state board of audit, and therefore decided that the claim was barred by the statute of limitations, and on that ground alone defeated the plaintiff.

The sole question for our determination is whether plaintiff's claim was barred by lapse of time; and whether it was or not depends upon the effect to be given in this case to section 14 of article 7 of the constitution, which was adopted at the election in the fall of 1874, after the claim became due, and which reads as follows: ‘Neither the legislature, canal board, canal appraisers, nor any person or persons acting in behalf of the state, shall audit, allow, or pay any claim which, as between citizens of the state, would be barred by lapse of time. The limitation of existing claims shall begin to run from the adoption of this section; but this provision shall not be construed to revive claims already barred by existing statutes, nor to repeal any statute fixing the time within which claims shall be presented or allowed; nor shall it extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment.’ The object of this section was to prevent the allowance against the state of stale claims which had long lain dormant. But, as the state could not be sued, it was not intended to bar claims which had been duly presented for payment or allowance. To avoid the bar of time it was not necessary that the presentation should be made to the board of audit, or to its successor, the board of claims. All either of these boards could do was to audit or allow claims. They could not pay them, but the legislature would still have to appropriate money for their payment, and thus approve them. The presentment of a claim may be made to the legislature, which has jurisdiction in some form over all claims against the state; or it may be made to any officer or body of officers having jurisdiction to pay, allow, or act upon the claim, and the claim may not be presented and then permitted to lie dormant, but must be prosecuted with reasonable diligence. It must be a live claim which the claimant has, by reasonable and suitable efforts, diligently sought to have allowed and paid, else time interposes a bar which will defeat it, as it could be defeated if presented against an individual.

This money was payable upon demand on the tenth day of August, 1874. The plaintiff had the right to make the demand on that day, and hence, if this were an action between individuals, the limitation of time would have to be computed from that day. These moneys were not deposited to be repaid only upon a special demand, within the meaning of the second subdivision of section 410 of the Code; but we think this claim was duly presented, within the meaning of the constitutional provision referred to, and was prosecuted with due diligence. Some time before August 10, 1874, the state treasurer deposited this money with the Farmers' & Mechanics' Bank of Rochester, together with other similar funds, and subsequently the bank became insolvent, and the money was lost. This loss did not absolve the state from its liability to repay the money to the plaintiff. He deposited the money with it when the money was paid into the hands of its treasurer, who was not his agent, but a state agent acting for and on its behalf. It cannot allege the loss by the misconduct or default of its treasurer as a defense to the payment of the money according to its contract.

But the money having been lost, and not being in the state treasury, nor under the control nor at the disposal of the treasurer, it could not be refunded, according to the provisions of the act of 1873, upon the certificate of the state engineer and canal commissioner, but only after some legislative action making new provision for its repayment. So the plaintiff could be charged with no default or omission in not procuring the certificate of the two officers named, or placed at a disadvantage on that account.

On the first day of May, 1876, the legislature, in the supply bill of that year, (chapter 193,) enacted as follows: ‘The sum of twenty-two thousand eight hundred dollars, or so much thereof as may be necessary, is hereby appropriated to refund to the contractors the amounts deposited by them in trust with the late treasurer, in pursuance of acts, chapter 850, Laws 1872, and chapter 766, Laws 1873, with such equitable interest as may be due thereon, which deposits were loaned by said treasurer to the Farmers' & Mechanics' Bank of Rochester and the Bank of Brockport, and are now unavailable in consequence of the failure of...

To continue reading

Request your trial
8 cases
  • Emrich v. Little Rock Traction & Electric Co.
    • United States
    • Arkansas Supreme Court
    • November 29, 1902
    ...be liberally construed. Suth. Const. Stat. § 368. Courts will not presume facts necessary to constitute a bar. 92 N.Y. 239; 103 N.Y. 547; 99 N.Y. 491; 13 Am. & Eng. Enc. Law, The Code has abrogated certain statutes. 45 Ark. 275; 29 Ark. 471; 59 Ark. 326; 46 Ark. 438. Repeal by implication. ......
  • Union Land & Timber Co. v. Pearl River County
    • United States
    • Mississippi Supreme Court
    • December 14, 1925
    ... ... Acting ... under the provisions of section 4346, Code of 1906, appellant ... applied to the auditor of public accounts of the state for a ... refund of excess taxes paid in to the state treasury, and on ... April 4, 1919, the claim was allowed and paid. The auditor ... 525; McClandish v ... Commonwealth, 76 Vt. 1002; Noyes v ... State, 46 Wis. 250, 32 Am. Rep. 710; Coxe ... v. State, 144 N.Y. 396; Corkings v ... State, 99 N.Y. 491; Western A. R. Co. v ... State (Ga.), 14 L. R. A. 438 ... Parker ... & Shivers, for appellee ... ...
  • Quarnberg v. City of Chamberlain
    • United States
    • South Dakota Supreme Court
    • June 25, 1912
    ...Har. & McH. (Md.) 518. As to what constitutes the commencement of an action, see Coxe v. State, 144 N.Y. 396, 39 N.E. 400; Corkings v. State, 99 N.Y. 491, 2 N.E. 454, 3 N.E. 660; Marsh v. St. Croix County Supt., 42 Wis. 355; Woodruff v. Winston, 68 Ala. 412; Lacey v. Newcomb, 95 Iowa, 287, ......
  • Pearl River County v. Lacey Lumber Co.
    • United States
    • Mississippi Supreme Court
    • January 10, 1921
    ... ... Act authorizing special assessment void under ... constitutional provision as to uniform laws ... Under ... section 112 of the state Constitution, providing for equal ... and uniform laws for the assessing and valuation of property, ... chapter 475. Laws of 1916. authorizing ... McClandish v. Commonwealth, 76 Vt. 1002; Noyes ... v. State, 46 Wis. 250, 32 Am. Rep. 710; Coxe v ... State, 144 N.Y. 396; Corkings v. State, 99 N.Y ... 491; Western A. R. Co. v. State (Ga.), 14 L. R. A. 438 ... This ... court had already decided in the Horton and ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT