112 Misc. 517 | New York Court of Claims | 1920
The county of Cayuga filed a claim against the state, alleging that the county treasurer of Cayuga county paid to the state the sum of $21,636.01 as a part of the cost of construction of the Fleming-Scipio, Fleming-Auburn and Wyckoff, and the Groton-Locke and Moravia state highways in the county of Cayuga. It is alleged in this claim that this amount was the share which the towns of Locke, Moravia, Fleming and Owasco in said county were called upon to pay under the provisions of the Highway Law of the state of New York towards the cost of construction of said highways. It further alleges.that after the payments were made, under the construction given by the Court of Appeals to the Highway Law (Laws of 1912, chap. 63), the county of Cayuga after April 2, 1912, was not able lawfully to collect from any town in which the state highways were under construction any amount to meet any such part of such construction, and that the town was not liable for part of such cost of construction; that notwithstanding the law, between April 2 and April 4,1914, the state highway commission drew upon the county treasurer of Cayuga county from time to time for the share of the expense of the construction of the above roads and the county treasurer paid over to the state the sum of $21,636.01, and that this amount which was paid to the state was an obligation of the state of New York under the Highway Law as amended and not an obli- . gation on the part of the county of Cayuga.
The claim was filed and the facts as alleged in said claim were established upon the trial. The case was originally tried before the late lamented Charles E.
The legislature passed an enabling act, chapter 657 of the Laws of 1918, which reads as follows:
“ The People of the State of New YorTt, represented in Senate and Assembly, do enact as follows:
“ Section 1. Jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the claim of the county of Cayuga against the state for moneys alleged to have been paid by such county for road construction in certain cases where it is alleged that the expense of such construction was chargeable to the state, and to make an award thereon and render judgment against the state in favor of the claimant for such sum as the court may determine to be justly due, notwithstanding the failure of such county to file notice of intention to file such claim within the time prescribed by section two hundred and sixty-four of the code of civil procedure. The state hereby consents to have its liability on such claim determined. Nothing herein contained shall be held as admitting the validity of such claim or any part thereof upon the part of the state, nor as waiving any defense of the state thereto, except that such claim shall not be impaired or defeated on account of the failure to file such notice of intention. The jurisdiction conferred by this act shall not attach unless the claim be filed within six months after this act takes effect.
“ § 2. This act shall take effect immediately.”
The defense that the payment was a voluntary one does not apply to a municipality. While it is a well-settled principle of law that where a voluntary payment is made because the error on the part of the person paying was one of law and not of fact, the person making such voluntary payment cannot recover (Silliman v. Wing, 7 Hill, 159; National Bank of Ballston Spa v. Board of Supervisors, 106 N. Y. 488; New York & Hudson Railroad Co. v. Marsh, 12 id. 308; Flower v. Lance, 59 id. 609), this rule has no application to a municipality or other public body. Village of Fort Edward v. Fish, 156 N. Y. 364; Donohue v. City of New York, 10 Hun, 37; Board of Supervisors v. Ellis, 59 N. Y. 620; Ward v. Barnum, 10 Col. App. 496; Wayne Co. v. Reynolds, 126 Mich. 231; Bayne v. United States, 93 U. S. 642. This rule of law is based upon the principle that such a payment is not voluntarily made by the municipality, but by its agent, in excess of his authority and in defiance of its rights. It is not the act of the municipality itself, but one who assumes to act for it without authority.
The state also asserts that the payment on the part of the towns to the county of $6,366.50 being voluntary, the towns could not recover over against the county and at least to that extent the claim should not be allowed, but the rule of law above cited and the cases apply as well to towns as to other municipal bodies and, therefore, such payment was not a voluntary one and the towns can recover the moneys so paid.
The state also asserts that the county, being an integ
We think that the legislature has by chapter 657 of the Laws of 1918 not only conferred jurisdiction upon this court, but has consented by that act to have its liability determined by this court. The jurisdiction conferred upon this court by said act is not only to hear, audit and determine the claim of the county of Cayuga against the state for moneys alleged to have been paid by said county for road construction in certain cases where it is alleged that the expense of such construction was chargeable to the state and to make an award thereon and render judgment against the state in favor of the claimant for such sum as the court may determine to be justly due, but in the act the legislature distinctly states: “ The state hereby consents to have its liability on such claim determined.” Said act grants such jurisdiction notwithstanding the failure of such county to file a notice of intention to file such claim within the time prescribed by section 264 of the Code of Civil Procedure, and further provides: “ That nothing herein contained shall be held as admitting the validity of such claim or any part thereof upon the part of the state, nor as
We think that the legislature by this act intended to confer jurisdiction upon this court to hear, try and determine the claim and allow an equitable decision to be made and that the exception in the act, which reads: “Nothing herein contained shall be held as admitting the validity of such claim or any part thereof upon the part of the state, nor as waiving any defense of the state thereto,” must be read in connection with the rest of the act and especially that part which states that “ the state hereby consents to have its liability on such claim determined.”
The language of the act which reads “ nor as waiving any defense of the state thereto ” we think means defense in the ordinary acceptance of the word “ defense.” Defense as defined is that which admits the allegation set up as a cause of action but asserts new matter by way of avoidance. Gilbert v. Cram, 12 How. Pr. 455; Stoddard v. Onondaga Annual Conference, 12 Barb. 373. Defense is new matter which consists of some fact which plaintiff is not bound to prove to establish his cause of action, and which goes in avoidance or discharge of the cause of action alleged in the complaint. Meissner v. Brennan, 39 N. Y. St. Repr.
If, as contended for by the state that the Enabling Act only intended to give the county additional time to file the claim or the notice of intention, the legislature could have said so in much fewer words. When it conferred jurisdiction on this court to hear and determine the claim and also expressly asserted in the
It has been the rule and practice of the legislature in many instances that although the state is immune and is not legally liable it can and does recognize claims founded in equity and justice. As was said in Oswego & Syracuse Railroad Co. v. State of New York, 226 N. Y. 351, and also in County of Ulster v. State, 177 id. 189: “ The situation does not prohibit the recognition of claims which have their roots in equity and justice.” In the case of Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 475, Judge Cullen, writing the opinion.for the court, said: “ In Town of Guilford v. Supervisors of Chenango County (13 N. Y. 143) the broad doctrine was laid down: The legislature is not confined in its appropriation of the public moneys, or
It is, therefore, very evident that the Enabling Act was intended by the legislature not only to confer jurisdiction upon this court but also intended to waive the technical objection that the county as an integral part of the state could not sue the state. If the language of the Enabling Act which declared: “ Nothing herein contained shall be held as admitting the validity of such claim or any part thereof upon the part of the state, nor as waiving any defense of the state thereto,” intended that this objection should be raised, then the Enabling Act would be a mere nullity and mean nothing at all, as the legislature, when it passed this Enabling Act, must have understood that this tribunal as a Court of Claims under section 264 had no jurisdiction to hear a public claim, but only a private one, and must have understood that the county could not sue it, and the passing of the Enabling Act must have been for the purpose and was intended to allow this tribunal to dispose of the claim made by
The legislature did not intend by the Enabling Act to create a liability, but intended to have that question determined by this court.
It has been recently decided in the case of Town of New Lebanon v. State of New York, 111 Misc. Rep. 310, which was a claim by a municipality, that the Court of Claims has no jurisdiction to try a claim made by a municipality against the state, for the reason that the jurisdiction of the Court of Claims, by section 264 of the Code of Civil Procedure,. is limited to hear and determine private claims, and the court has no jurisdiction to hear and determine public claims, and it was also decided in that case that a claim by a municipality cannot be made against the state for the- reason that it is an integral part of the state and, therefore, could not sue the state, and that ruling would apply to this case, as the county of Cayuga is a muncipality and an integral part of the state, but we think the Enabling Act, chapter 658 of the Laws of 1918, permits the county of Cayuga to bring such an action against the state and especially confers jurisdiction upon this court to hear, try and determine the claim so to be presented under said Enabling Act.
The claim of the claimant should be allowed.
Ackerson, P. J., concurs in result.
Claim allowed.