119 N.E. 95 | NY | 1918
This is a claim for salary based on the provisions of chapter 680, Laws of 1915, in effect May 22, 1915, which provided an annual salary of $3,000 for each member of the state athletic commission. Claimant had served as such commissioner from July 26, 1911, under the original act creating the athletic commission (L. 1911, ch. 779), which made no provision for compensation and he continued to serve until October 8, 1915, when his successor was appointed.
No appropriation was made for the payment of claimant's salary for the period between May 22, 1915, and October 1, 1915, and when a payroll covering such period was submitted to the comptroller he properly refused to audit the same for the reason that no appropriation applicable thereto had been made. The State Finance Law [Cons. Laws, ch. 56] (§ 36) provides that "The comptroller shall not audit any claim for salary, labor or wages, unless an appropriation applicable thereto has been already made specifying the amount thereof appropriated for such purpose." Thereupon the attorney-general and the claimant's attorney agreed on the facts and submitted them to the Court of Claims for decision. The Court of Claims made its determination in favor of claimant and ordered an award in his favor. On appeal to the Appellate Division this determination was unanimously affirmed. On appeal to this court the attorney-general challenges the jurisdiction of the Court of Claims to determine the claim. He may raise the question of jurisdiction because he could not waive it. (Buckles v. State,
The Court of Claims "has no jurisdiction of a claim submitted by law to any other tribunal or officer for audit or determination except where the claim is founded upon express contract and such claim, or some part thereof, has been rejected by such tribunal or officer." (Code Civ. Pro. § 264.) This is not such a claim. To audit is to hear, to examine, to adjust, allow or disallow. (Stemmler v. Mayor, etc., of N.Y.,
The right of claimant to his salary from May 22 to October 1, 1915, is clear, not because there was any *44
express contract between the officer and the state (Fitzsimmons
v. City of Brooklyn,
The judgment appealed from should be affirmed, with costs.
HISCOCK, Ch. J., CHASE, HOGAN, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment affirmed.