
    Andrew Lewis, as Administrator of the Estate of Julius Lewis, Deceased, Appellant, v. The State of New York, Respondent.
    
      State — constitutional law — claim against state for death of member of National Guard — finding that death was not result of neglect on part of any officer or representative of state, but occurred through carelessness and negligence of deceased — legislature may not authorize payment of claim in absence of legal or moral obligation of state.
    
    
      Lewis v. State of New York, 197 App. Div. 712, affirmed.
    (Submitted October 9, 1922;
    decided November 21, 1922.)
    Appeal from a judgment entered July 30, 1921, upon an order of the Appellate Division of the Supreme Court in the third judicial department reversing a judgment in favor of claimant entered upon an award of the Court of Claims and directing a dismissal of said claim. Claimant, a member of the National Guard, had been engaged in lowering from a balcony to the floor of the drill shed in a state armory, by means of a block and fall, articles to be used in camp. It being necessary that he go to the balcony he elected to be hoisted up by the tackle and when near the balcony slipped and fell receiving injuries from which he died. The Court of Claims found: 
      “ That there is no evidence that the state or any officer or representative thereof failed or neglected to perform any duty or obligation which it or he owed to the deceased at the time and place of the accident which resulted in the death of decedent. That the death of the decedent was due to his own carelessness and negligence.” The Appellate Division held that there was no legal or moral obligation upon the part of the state to pay damages for the death and that the legislature was without power to authorize payment of such claim.
    
      Samuel Leavitt for appellant.
    
      Charles D. Newton, Attorney-General (Henry C. Henderson of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  