
    Fred R. Butterfield, Respondent, v. The State of New York, Appellant.
    (Argued October 9, 1917;
    decided November 13, 1917.)
    State — filing of claim not equivalent to filing of notice of intention to file claim.
    The filing of a claim against the state is not equivalent to the filing of the written notice of intention to file a claim provided for by section 264 of the Code of Civil Procedure. (Curry v. City of Buffalo, 135 N. Y. 366; Buckles v. State of N. Y., 221 N. Y. 418, followed.)
    
      Butterfield v. State of N. Y., 178 App. Div. 292, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1917, which reversed a determination of the Court of Claims dismissing the claim of the respondent herein, _ and remitted the matter to said Court of Claims for further consideration. The Court of Claims dismissed the claim herein upon the ground that no proof was offered establishing the filing in the office of the clerk of the Board of Claims and with the attorney-general of a “ notice of intention to file a claim ” against the state pursuant to section 264 of the Code of Civil Procedure. That court refused to pass upon the contention by the claimant that it appeared from the evidence that the claim was filed within six months from the date it accrued. The Appellate Division in reversing the order of the Court of Claims held that the filing of the claim in the office of the clerk of the Court of Claims and in the office of the attorney-general within six months from the date when the claim accrued would be a substantial compliance with section 264 of the Code of Civil Procedure, although no “ notice of intention to file a claim ” against the state had been filed. The claim was, therefore, remitted to the Court of Claims for determination by that court of the date when the alleged damage accrued and proof of other facts alleged in the claim.
    
      • Merton E. Lewis, Attorney-General (Edmund H. Lewis of counsel), for appellant.
    
      W. E. Young and W. Chase Young for respondent.
   Per Curiam.

The order appealed from should be reversed, and the determination of the Court of Claims ' affirmed, with costs in this court and in the Appellate Division, upon the authority of Buckles v. State of New York (221 N. Y. 418).

The filing of the claim itself, even within six months, is not equivalent to the filing of the written notice of intention to file a claim against the state provided for by section 264 of the Code of Civil Procedure. (Curry v. City of Buffalo, 135 N. Y. 366.)

Hiscock, Ch. J., Chase, Cuddeback, Pound, McLaughlin and Andrews, JJ., concur; Hogan, J., concurs in result.

Order reversed, etc.  