
    William Gates, App’lt, v. The State, Resp’t.
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. State—Limitation.
    Plaintiff was injured by the falling of a bridge over the canal in 1877, and within two years mailed a claim therefor to the canal appraisers, but there was nothing to show that it was received. In 1888, the legislature passed an act authorizing and directing the board of claims to hear the claim as though it had been filed within the time provided by law. Held, that the claim was barred by the statute, and that the legislature had no power by said act to confer jurisdiction on the board of claims to allow or award upon it
    2. Same—Filing op claim.
    To constitute a valid filing of the claim in such a case there must be a delivery by, or on behalf of, the party at the office itself.
    Appeal from judgment of the board of claims, awarding nothing upon appellant’s claim.
    The appellant claimed to recover against the state for personal injuries, received from the falling of abridge over the Oswego canal, in the work of repairing which, at the time, he was engaged. His regular employment had been that of an ordinary laborer upon one of the state scows on the canal. The bridge had been reported to the canal commissioners, in the year previous to the accident, to be structurally unsound and in a very dangerous condition. The foreman of the state scow, upon which the claimant was working, when he received his directions, proceeded to the bridge in question, to make certain repairs upon it. When this work was almost completed, the structure gave way, from its general unsoundness, and the claimant, being precipitated into the canal, received his injuries. In 1879, and within two years of the occurrence, a statement of claim for damages was made out for him, which was directed and mailed to the canal appraisers. It was conceded that no other steps were taken, and that this paper could never be found, and that there was no record of its receipt or filing in the office oh the canal commissioners or of the board of claims. In 1886 the legislature passed an act authorizing and directing the board of claims to hear this claim and to award “ in like manner as though such claim had been filed within the time now provided by law.” That tribunal awarded nothing, upon the grounds that no liability had been established against the state, and that the claim was barred by lapse of time. From that decision the claimant appeals to this court.
    
      Louis Marshall, for app’lt; Charles F. Tabor, attorney-general, for resp’t.
   Gray, J.

If this claim might be disposed of upon its merits there would be no difficulty in establishing the liability of the state in damages. The claimant was a mere laborer, in the employ of the state upon ordinary canal work, and when, in obedience to orders, he proceeded to labor upon the bridge he was not only inexperienced, but he was ignorant of its actual condition. He cannot» be said to have assumed any of those risks which were incidental to such work from the existence of the serious defects in the bridge structure. He was entitled to believe that the place assigned to him for the performance of his work was an ordinarily safe one and that his employers had no information concerning the risks attendant upon laboring there which he did not possess himself, or which ordinary observation and prudence would not have revealed. The state, in submitting itself to the jurisdiction of a tribunal with respect to claims against it for damages sustained by reason of any accident occurring upon its canals, or connected with their care and management, subjected the determination of its liability to the government of those rules which usually obtain in cases between the employer and the employed.

It is a cardinal rule of conduct in that relation that the former shall not expose the persons who are engaged in performing his work to unreasonable risks. They have the right to assume that where they are directed to work is as safe a place as is compatible with the nature of the undertaking and that their employer has not neglected any means in his power, or at his disposal, to render its performance reasonably free from danger to life and limb. While in work of an inherently dangerous nature the workman is ordinarily held to assume that certain risk which must attend upon its execution, that rule involves, and depends for its application upon, the knowledge or means of knowledge upon the workman’s part of the attendant peril to him. Such knowledge may be presumed to be possessed by reason of previous employment and experience; or to be suggested by ordinary observation and appearances. If the workman is without experience in the particular work required of him, and if, as here, danger for him exists, from causes not apparent, but which are known to his employers, I think it unquestionable, in principle, that an obligation should be deemed to rest upon him to communicate such information as would apprise the workman of the nature of the work and of the possible risks in its execution. He should be placed on a par, as nearly as possible, in such respects, with his employer.

. His duty is not only within the letter and spirit of the rules established by many decisions, but it is one which should be dictated by every consideration of prudence and of responsibility toward others. But, however meritorious the claim 'here, the claimant’s remedy against the state had ceased to exist at the time of its submission to the board of claims from the intervention of the general statute of limitations. Section 14 of article 7 of the constitution prohibited the allowance of any claim which as between citizens of the state would be barred by lapse of time. It was, therefore, not within the powers of the legislature, by the passage of chapter 244 of the Laws of 1886, to confer jurisdiction upon the court of claims to allow, or to award upon this claim, if it was already barred by the expiration of the time limited by the general statute for the commencement of actions for damages for personal injuries resulting from negligence. Code of Civil Procedure, § 383.

As the accident occurred in 1877, the bar of that statute would fall upon the lapse of three years.

The origin of the difficulty in the way of claimant’s recovery was in his failure to comply with the requirements of the law m respect to filing his claim. Chapter 321 of the Laws of 1870 conferred jurisdiction upon the board of canal appraisers to hear anct determine such claims against the state and the proceeding thereby authorized was required to be initiated by the filing of the claim in their office. What was done in this case was to mail the statement to the canal appraisers, and the appellant’s counsel has ingeniously argued that that was a sufficient compliance with the law and constituted a- filing. The presumption as to the receipt of letters, properly directed and sent through the mails to a person, is one of fact and is based upon the circumstances of the particular case, Here, however, the question of the receipt and filing of the claim goes to the very foundation of the jurisdiction and right of the tribunal to act upon it Its powers are exclusively derived from the consent of the state, as expressed in the act of the legislature, and none may be implied except such as may fairly be deemed incidental and necessary to the jurisdiction when once acquired. The citizen who seeks to avail himself of the privilege to sue the state must be held to strictness in procedure, just as it must be held in all cases where the remedy is one which exists and is enforceable solely through the provisions of some statute. His right being dependent upon compliance with the terms of the statute, jurisdiction of his claim can be acquired by the tribunal only in the way prescribed. To require that “ claimants shall file their claims in the office of the canal appraisers ” has but one meaning and effect There must have been a delivery by, or on behalf of the party of his claim at the office itself to constitute, and to enable him to allege and to establish the jurisdictional fact of a filing. Anything- short of a delivery leaves the fact of the filing disputable, and that, I think, would be quite inconsistent with the principle which underlies the jurisdiction of the inferior tribunal. Its jurisdiction being limited and special, no presumption will be entertained in support of it,- but the fact conferring it must affirmatively and conclusively appear. See Foot v. Stevens, 17 Wend., 483.

The state cannot be sued without its consent and. it has the right, in authorizing the maintenance of proceedings for the recovery of claims against it, to impose such terms and conditions and to prescribe such procedure as its legislative body shall deem proper. The conditions imposed become jurisdictional facts and determine the status and right of the litigant If we should hold that the mailing by a claimant of his claim, directed to the canal appraisers, was equivalent to a filing in the office, I think we should be disregarding the plain reading of the law and denying to the words of a statute their plain'and usual force and significance.

When, under § 12 of chap. 205 of the Laws of 1883, the board of claims was created and claims pending before the board of canal appraisers were transferred to the new tribunal, the present claim, for lack of the filing required by the statute, was not one of those included in the transfer. The failure to file had resulted in the loss to the claimant of his remedy against the state. The act of 1886 was of no avail to him ; for it was in violation of the constitutional amendment of 1874, in so far as it authorized the board of claims to make an award upon an unenforceable claim. Its only effect was to authorize the board to hear the claim, notwithstanding the limitation in the act creating that tribunal as to the time of filing. The claim came before the board subject to all constitutional limitations and, therefore, to any statutory provisions which, as between citizens of the state, would have barred an action. McDougall v. The State, 109 N. Y., 73; 14 N. Y. State Rep., 791.

The result reached is not, on general grounds, unjust. The claimant’s remedy was lost by the failure to make use of means, from the very first moment, available to him. There was in existence a tribunal before which his claim could at all times have been prosecuted against the state. The omission to commence the proceeding, in the mode and within the time pointed out by the act of 1870, which authorized such claims to be heard and determined, and the eventual lapse of the period of time limited by the general statute for the commencement of actions of that nature, operated to bar any recovery, when,, by virtue- of the act passed in 1886, for his relief, the board of claims was directed to hear the claim. Upon these facts appearing that court could not make any award, because of the constitutional prohibition as to such claim.

For the reasons I have stated the decision and award of the court of claims should be affirmed, with costs.

All concur, except Finch, J., absent  