
    SIPPLE v. STATE OF NEW YORK.
    
      N. Y. Court of Appeals ;
    
    June, 1885.
    Claim against the State.*—Negligence op public officers.— Witness having interest.—Maxim, respondeat superior.
    
    The State of New York is liable to an individual, under the board of claims act (Z. 1870, c. 321, § 1),—which provides for claims against the State, for damages from the canals or from their use and man* agement, or resulting or arising from the negligence or conduct of officers of the State, having charge thereof, or resulting from any other matter or thing connected with the canals, provided the facts would create legal liability if established against an individual or corporation,—whenever an individual or corporation engaged in a similar enterprise would be liable.
    
      * See notes on Bemedies against a State, at the end of this case.
    
      The case of Lewis v. State, 96 N. Y. 71, distinguished.
    The liability is not confined to cases arising from the negligence of officers having the duty of general supervision, but includes damages resulting from the negligence of subordinate officers and employees.
    The maxim respondeat superior applies against the State in such cases.*
    The liability arises in favor not only of those who navigate the canals or whose property is transported, but also of the public at large; and one whose premises are injured by a break in the canal in ' consequence of the want of proper care on the part of the lock-tender, has a right to recover against the State.
    It is the duty of the State to maintain a constant watch at such gates at dangerous places, until the close of navigation and the permanent fastening of the gates for the season. &
    The testimony of the employee that he performed the duty which plaintiff alleges to have been neglected, is not conclusive against the liability of the State, even in the absence of affirmative evidence showing who caused the injury; for, being an interested witness, the trial court is not under legal obligation to give implicit credit to his testimony.
    * Otherwise of ordinary claims for negligence, not embraced in any such statute. Gibbons v. United States, 8 Wall. 269; Clodfelter v. State, 86 N. C. 51; S. C., 14 Rep. 410.
    Appeal from an award of the Board of Claims.
    The claim was for damages to plaintiff’s premises adjacent to the State Canal, by the overflow of water from the canal, consequent upon the alleged opening of the gates of a lock, at night.
    The lock-tender testified on behalf of the State that he closed the gates shortly before the hour when they were thus open, and did not again open them.
    Further details appear in the opinion.
    
      The board found in favor of the claimant, and the State appealed.
    
      Dennis O'Brien (attorney general), for the appellants.
    
      W. H. Bowman, for the respondent.
   Ruger, Ch. J.

It must be conceded that the State can be made liable for injuries arising from the negligence of its agents or servants only by force of some positive statute assuming such liability (Lewis State, 96 N. Y. 71). It is claimed by the respondent that such an assumption has been made by section 1, chapter 321, Laws of 1870. This gives authority to the board of claims “ to hear and determine all claims against the State, of any and all persons and corporations for damages alleged to have been sustained by them from the canals of the State, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or rising from any accident or other matter or thing connected with the canals ; but no award shall be made unless the facts proved shall make out a case which would create a legal liability against the State were the same established in evidence in a court of justice against an individual or corporation.”

It is contended by the attorney general that this act should be so construed as to exempt the State from any liability occurring through its management of the canals, except that arising from the negligence of some person described by law as an officer of the State.

We think such a construction is uncalled for either by the letter or spirit of the statute. Its plain reading makes the negligence of a State officer but one of the alternatives upon which the liability depends. Thus the State assumes liability for damages arising from the use and management of the canals, or from the negligence or conduct of its officers having charge thereof, or from any accident “or other matter or thing connected” with them. It is not essential to a recovery under the act that the damages should be caused by the negligence of such an officer ; but, if the same were occasioned by “any accident or other matter connected with the canals ” or from “ their management, ” no matter what the immediate cause may be, its express terms authorize an award ; provided, under similar circumstances, the law would adjudge a liability against an individual or corporation. The act was conceived in the plainest principles of justice, and was. intended to afford a substantial and not a delusive remedy to parties who might be injured by the careless and negligent conduct of those who were intrusted by the State with the execution of its work. The canal was a State enterprise, and was managed and controlled by its servants, and reason and justice require, when it engages in public enterprises from which a revenue is expected to be derived, and in the prosecution of which private property is required tobe taken, and individual interests jeoparded, that it should compensate those whose property rights are thereby invaded. The object in view was the protection of the citizen, and not the exemption from liability of the State ; and it is quite evident that the State thereby intended to assume, with reference to the management of the canals, the same measure of liability incurred by individuals and corporations engaged in similar enterprises, and to afford to parties injured, the same redress which they would have against such individuals and corporations for similar injuries. The use of the terms “ the negligence or conduct of any officer of the State having charge thereof” were obviously descriptive, and intended to embrace all those persons in the employ of the State intrusted with the performance of duties relating to the canals, and from a neglect or omission to perform, which, damages might occur to individuals. It is unreasonable to suppose that the State intended to confine its liability to cases arising from the negligence of those officers having the duty of general supervision only to perform, and deny relief in cases where damages arose from the neglect of others having practical control of its operations. It is unquestionably the duty of all State officers to scrutinize closely the authority under which claims are made upon the public treasury, and defeat such as are not clearly warranted by law; but it is unbecoming the dignity and honor of a great State to attempt to evade the fulfillment of its obligations according to their spirit and meaning, or to stint the payment of a proposed indemnity by a constrained or illiberal construction of the language in which its promise is framed. The act is broad and comprehensive in its language, and should be construed in the spirit which inspired its enactment.

The only inquiry under it, therefore, is whether the claimant made out such a case by evidence, as entitled him, if it had been proved against an individual or corporation, to have recovered against them.

The proof shows that the injury occurred in consequence of the opening of the paddle gates lock to No. 65 on the canal between the hours of half-past twelve and two on the night of December 5th and 6th, 1883, whereby ■ a large quantity of water was let into the lower level of the canal, its banks were breached, and the premises, of the claimant adjacent were overflowed and greatly damaged.

It is not claimed by either party to this controversy that these paddles could have been opened by accident or without human agency ; and the inference is unavoidable that they were intentionally or inadvertently left open, either by the tender in charge of the locks, or by some third persons.

It is contended that the Board of Claims are legally bound, in the absence of affirmative evidence showing the actual offender, to find the latter to be the guilty parties by reason of the evidence of the the lock-tender, that he closed these paddles at half-past twelve o’clock and did not again open them.

We do not think this is so. This witness was not disinterested, and the trial court might well have regarded his evidence on that point with suspicion and incredulity. He had been charged in a criminal prosecution, with liability for the mischief occasioned by the act in question, and although discharged from that accusation, still remained liable to a civil action for damages, and to prosecution for felony under section 479 of the Penal Code, and to other punishment •under section 480. He was, therefore, influenced by the most serious considerations, not only to repel the imputation of neglect as against himself, but to throw the suspicion of guilt upon the others. Under the circumstances surrounding this man, the trial court was under no legal obligation to give implicit credit to his testimony (Wohlfahrt v. Beckert, 92 N. Y. 490; S. C., 12 Abb. N. C. 478 ; aff’g 27 Hun, 74; Elwood v. Western Union Tel. Co., 45 N. Y. 549). So far ‘as the proof shows, he was the only person known to have had any thing to do with these paddles on the night in question; and from the shortness of time elapsing between the hour when he left the lock and the appearance of the flood in the surrounding country, it is not an unnatural or an improbable influence that the opening of the paddles was synchronous with the time of the departure of the lock-tender.

The trial court found upon the evidence “ that the break was the result of want of proper care on the part of the lock-tender in charge of said lock No. 65, and in leaving said lock without any one in charge thereof.” We think it authorized such a finding. It was supportable not only upon the theory suggested, but also upon the ground of an omission to perform a duty enjoined upon them by the instruction under which they were acting, and which duty the exercise of reasonable care and prudence in the management of the canals enjoined upon the master. The gates in question opened into a level of only half a mile in length, constructed upon an embankment overlooking a large stretch of country, and where a breach in the bank was liable to occur and occasion great damage.

It was competent for the trial court to find that the exercise of reasonable care required a constant watch upon these levels during the period of their use for purposes of navigation, and that an omission to keep such watch was an act of negligence. The evidence showed that it was the custom of the State to keep lock-tenders on guard at all time during the season of navigation, at the lock in question, to assist boats in passing through, and to regulate the height of water in the level below; that during that time these paddles, when not raised, were pulled back and fastened with a ring or pin, but upon the close of navigation and removal of the lock-tenders, they were always securely locked, so as to be immovable without the possession of a key, or the use of force and violence upon the locks.

The evidence further shows that on the night in question the only lock-tender on duty left the locks at midnight, leaving the paddles unlocked and the premises unguarded. The canals had been, officially ordered to be closed on December 7, and they were actually frozen over at the time in question.

It is claimed by the appellant that the lock-tenders were justified in leaving the locks unguarded oh account of the proximity of time for closing navigation, and the unnavigable condition of the canal.

Perhaps that is so ; but if they had any right to act on the assumption that the canals were in fact closed, did not the same assumption impose upon them the duty of taking those precautions which were customary at the close of navigation % If they are to be believed, these damages occurred either in consequence of their neglect to lock the paddles, or because they neglected the duty of remaining on guard through the night and until the close of navigation. Their duty required them to guard the locks during the season of navigation and until the paddles were locked by the proper authorities. This duty did not cease with the running of boats, but it continued so long as the presence of water in the canal required its effect upon the respective levels to be watched and provided for. This duty they violated, and to the consequences of such violation the damages are directly attributable.

Under such circumstances a master would certainly be responsible for the act of the servant. Then how can the State escape from it ?

As between individuals, the doctrine of respondeat superior applies where a servant who is employed to perform a duty, and while acting within the scope of his employment, performs it so carelessly and negligently that injuries occur to another. It was, in this case, the specific duty intrusted to the lock-tenders in question, to regulate the height of water in the levels adjoining the locks ; and it cannot be questioned but that, if they had been in the employ of an individual having the canal in charge as owner, he would have been liable for the consequences of their neglect. It is said in Sherman and Redfield on Negligence (§ 258) that “the obligations of a canal company do not exist in favor only of those who navigate its canal; or for whom it transports persons or property. It owes a duty to the public at large to see that its canal, locks, bridges and other property are so constructed, maintained and managed as not to cause injuries to others.”

Note on Remedies against a State.

The common law rule that a sovereign State could not be sued has been encroached upon in several directions t 1, by statutes adopted in a few of the States, allowing actions against them ; 2, by a recent decision sustaining the right of a citizen to sue his own State in the United States circuit court; 3, by decisions recognizing, somewhat more distinctly than formerly, if not extending, the right to sue an officer of the State, in respect to property or powers held by him as such, or acts done as such under circumstances which may often entitle him to require the State to indemnify him if judgment goes against him; 4, by statutes adopted by the United States, and by this State and some others, establishing courts or boards of claims, which proceed in a judicial manner.*

These obligations, we think, were assumed by the act in question on the part of the State toward all persons affected by its management of the canals, and should govern its liability in this case.

The award of the Board of Claims should be affirmed.

Miller and Danforth, JJ., dissented.

All the other judges concurred.

Award affirmed.

The following cases illustrate these remedies.

In a case where the State is not liable to be sued, appearance by the attorney general and answering, does not give jurisdiction (Matter of Dunn, 8 S. C. 207 ; Adams v. Bradley, 5 Sawyer, 217); except, perhaps where it is joined not to make it liable, but because it has an interest in the subject of'the action, and is joined and appears for the purpose of protecting that interest.

Compare Orford Union Cong. Soc. v. West Cong. Soc., 55 N. H. 463 ; Skiddy v. Atlantic M. & O. R. R. Co., 3 Hughes (U. S.) 320 ; Dabney v. Bank of the State, 3 S. C. 124 ; Stevens v. Stevens, 24 N. J. Eq. 77 ; (where the court directed the attorney general to file an information); Swasey v. North Carolina R. R. Co., 1 Hughes (U. S.) 17.

1. Statutes expressly authorising. States to be sued.

Actions against the State have been authorized to a greater or less extent iu:

Alabama, State v. Hill, 54 Ala. 67.

Mississippi. Whitney v. State, 52 Miss. 732 ; Green v. State, 53 Id. 148.

Nebraska. State v. Stout, 7 Nebr. 89.

Tennessee. State v. Bank, 3 Baxt. (Tenn.) 395.

Wisconsin. Chicago, M. & St. P. Rw. Co. v. State (53 Wisc. 509; S. C., 10 Northw. Rep. 560 ; Baxter v. State, 10 Wisc. 454 ; Sloan v. State, 51 Wisc. 547, 623; S. C., 8 Northw. Rep. 393.

England, by petition of privilege, see U. S. v. O’Keefe, 11 Wall. 178, 184, and U. S. v. Lee, 106 U. S. 196, 205, 238.

Also in New Zealand. Reg. v. Williams, 51 L. T. R. N. S. 546.

An act enabling to sue does not imply an admission of a cause of action. Commonwealth v. Stevens, 3 Ky. L. Rep. 165 (not to be Otherwise reported). S. P., Webb v. U. S., 13 Wash. L. R. 587.

An act enabling to sue is a matter of grace, and with the repeal of an action brought under it, falls. Exp. State, 52 Ala. 231; South. & North. Ala. R. R. Co. v. State, 53 Id. 637.

But query, as to actions on contracts made with the State, and transactions had, after the enactment of such a law.

* The reader will find a ready clue to other recent discussions of the liability of a State to be sued within itself, in 7 Southern L. Rev. N. 8 544 ; 18 Am. L. Rev. 814.

It was held in Trustees of Male High School v. Hewitt (Ky., 1882) 4 Ky. L. Rep. 34, that the State statute authorizing actions to be brought against the State, without mentioning the subject of limitations, did not make such actions subject to the general statute of limitations; but left such actions subject to the common law principle that the statutes of limitations of a State do not affect the State itself unless so expressed. See, also for that rule, Whitney v. State, 52 Miss. 732.

S. P. in the case of a discharge in bankruptcy. State v. Shelton, 47 Conn. 400; abstr. S. C., 23 Alb. L. J. 453.

So held also of a provision that the statute of limitations should be applicable to all actions brought by or against all bodies corporate or politic. Des Moines v. Harker, 34 Iowa, 84.

But compare Baxter v. State, 10 Wisc. 454.

Compare Gibson v. Chouteau, 13 Wall. 92, where the fact that the mischief to be remedied by a statute of limitations is of such a nature that it must necessarily be included, was recognized as a ground for allowing the application of the general statute of limitations by-implication.

See next case, post, and foot-note, p. 448.

In Strong v. State, 57 Ind. 428, the statute of limitations was, applied against the State.

If this be sound, the question then arises whether the limitation,, when the statute contains one, is available if not specially pleaded by the State.

See an analogous question in respect to the special limitation ini the statute of divorce, in Kaiser v. Kaiser, 16 Hun, 602; and see Londriggan v. N. Y. & N. H. R. R. Co., 12 Abb. N. C. 273, 274, note..

2. Right of a citizen to sue his own State in the United States circuit' court.

The recent decision to this effect in Harvey v. State of Virginia, 20 Fed. Rep. 411; abstr. S. C., 18 Am. Law Rev. 1078, has been commented on in 19 Cent. L. J. 118, and 8 Va. L. J. 384, 445, 641.

The New York and New Hampshire, statutes allowing citizens to-assign claims against another State to- their own State, for purpose of a suit for their benefit were held unconstitutional*. New Hampshire and New York v. Louisiana, 108 U. S. 76. Mr. Field’s argument in this case is in vol. 2 of- his Speeches, p. 422.

3. Suits against officers.

For recent decisions on the extent and limit of. the power to-recover against an officer when an action against the State itself would be precluded by the common law rule, see U. S. v. Lee, 106 U. S. 196, 215; Poindexter v. Greenhow, 114 U. S. 270, 286; State v. Doyle, 40 Wisc. 175; Graham v. Horton, 6 Kans. 343; Western R. R. Co. v. De Graff, 27 Minn. 1; S. C., 15 West. Jur. 120; Chaffraix v. Board of Liquidation, 11 Fed. Rep. 638; State of Louisiana v. Jumel, 107 U. S. 711, 726; abstr. S. C., 21 Am. L. Reg. N. S. 136; Cunningham v. Macon, &c. R. R. Co., 109 U. S. 446, &c.; and see Branch v. Macon, &c. R. R. Co., 2 Woods, 385.

Although a suit is nominally brought against an executive officer of a State by his name, yet if he has no interest, and a right of the State is the only matter in controversy, the State is the real defendant, and the suit is within the prohibition of U. S. Const. Amend. 11; State v. Doyle, 40 Wisc. 175.

A government is not subject to garnishment; nor is an officer of its revenue when funds sought to be reached belong to government or are claimed by it and it has the - possession thereof by him, he having no connection therewith as a private person, but having received them in his official capacity from his superiors as public money and holding them as such when served with the summons, and continuing so to hold it until transferring them by order of government to another similar officer. And it makes no difference that the government is not de jure, but merely de facto. Wilson v. Bank of Louisiana, 55 Ga. 98.

A suit in a United States court to compel, by mandatory injunction, the executive officers of a State to comply with a contract of the State by enforcing the State laws, is, to all intents and purposes, a suit against the State itself, within the prohibition against such suits in the 11th amendment to the constitution of the United States. McCauley v. Kellogg, 2 Woods, 13.

The fact that a State is the sole proprietor of a corporation, does not prevent the corporation from suing or being sued. [Following U. S. Bank v. Planters’ Bank, 9 Wheat. 904.] Western, &c. R. R. Co. v. Taylor, 6 Heisk. (Tenn.) 408; Hutchinson v. Western, &c. R. R. Co., Id. 634.

Under U. S. Rev. Stats. § 1059, either house of congress may refer to the court of claims any claim against the United States for adjudication on the facts and the law, and for judgment; but such reference creates no legal rights and admits nothing but the right to sue. It is for the court to determine whether or not the government is liable upon the cause of action referred to it. Webb v. U. S., 15 Wash. L. R. 587. .

The case in the text and the one following it, are important as indicating some principal rules of liability óf the State under the new statutes by which claims against the State can be prosecuted before the New York Board of claims.

See also the notes to the next case.

The statutes and rules governing proceedings before this board are as follows:

Jurisdiction.'] The board of audit have power to hear all private claims or accounts against the State (except such as are now heard by the canal appraisers according to law). L. 1876, p. 477, c. 444.

“ Said board shall have jurisdiction to hear, audit and determine all private claims against the State, which shall have accrued within two years prior to the time when such claim is filed, except claims barred by any existing statute, and to allow thereon such sums as should be paid by the State. Such board, however, shall have jurisdiction of such claims as were formerly cognizable by the State board of audit, provided they shall be filed on or before July 1, 1884, and shall not have accrued more than six years prior to such filing.” L. 1884, p. 60, c. 60, § 4; amd’g L. 1883, p. 213, c. 205, § 7.

By L. 1884, p. 62, c. 60, § 8; amending L. 1883, p. 215, c. 205, § 13, it is provided that “all the jurisdiction and power to hear and determine claims against the State, formerly possessed by the canal appraisers and the State board of audit, is hereby vested in the board of claims. Whenever a claim against the State is pending before said board of claims, which the canal appraisers have heretofore had jurisdiction to hear and determine, the board shall take testimony in the vicinity where the damages are alleged to have accrued, and the premises alleged to have been damaged shall be personally viewed by said board, and said board shall hold an adjourned session in said vicinity for the purpose of hearing said claim.”

The amendments consist in referring to the jurisdiction and powers formerly possessed by the canal appraisers, instead of now possessed, as in the act of 1883, and in the verbal amendment of substituting the word “ session ” for “ term,” in the last line.

By L. 1884, p. 400, c. 336, the superintendent of public works or other authorized agent .of the State may serve on the owner or occupant of the lands, streams or waters appropriated for the construction of or improvement of a canal or feeder, a notice of such appropriation describing the premises, and the board of claims were given jurisdiction “ to hear, audit and determine the claim of the owner or owners of such lands, streams or waters, and to allow thereon such sums as should be paid by the State, provided such claim shall be filed within two years after the service of said written or printed notice.”

And, on the taking of premises appraised at less than $200, may award an allowance for the expense of abstract and search. ,

By L. 1884, c. 418, p. 494, the board of claims were given exclusive jurisdiction of claims arising under that act, which authorized the governor to cause animals threatening infection or contagion to be destroyed.

A similar provision as to animals is contained in L. 1884, p. 81, c. 85.

By L. 1884, c. 318, p. 383, the board was given jurisdiction to determine the claims of the State for balances from interest on State tax, defalcation of county treasurers, and other causes from Clinton, Kings, Putnam, Richmond and Schuyler counties.

By L. 1884, p. 396, c. 329, appeals pending before the canal board from the canal appraisers, and appeals thereafter taken were transferred to be heard by the board of claims with the same powers as then possessed by the canal board.*

Amendments.] The board in furtherance of justice may amend a claim in any return on appeal. L. 1885, p. 666, c. 355, where the power is defined in detail.

General powers.] Each commissioner and the clerk have power to administer oaths. The board can make rules for establishing the forms and methods of procedure, can issue and enforce subpoenas, and can punish for contempt in like cases and in like manner as the supreme court. L. 1883, p. 213, c. 205, § 3.

And can issue commissions to take testimony either within or without the State to be used before it in like cases and in like manner as the Supreme Court, lb.

Clerh's office.] The office of the clerk shall bo kept open between the hours of 9 A. M. and 5 P. M. on all days except Sundays and legal holidays. Mule 2, last clause.

Counter-claims against the claimant.] It is provided by the second clause of L. 1884, p. 60, c. 60, § 4, above cited, in reference to the jurisdiction of the Board, that “it shall also have jurisdiction of all claims, on the part of the State, against any person making a claim against the State before said board, and shall determine such claim or demand, both on the part of the State and the claimant; and if it finds that the demand of the State exceeds the demand of the claimant, it shall award such excess in favor of the State against the claimant.

*It was previously intimated that the courts have no jurisdiction to review a decision of the canal appraisers as to a claim against the-State for damages for property taken for public use, and that the only remedy is that provided by the legislature, that is, by the action of the canal appraisers as modified by an appeal to the canal board. [Citing People v. Dennison, 84 N. Y. 272.] People ex rel. Benedict v. Dennison, 28 Hun, 328.

Sessions.] There are to be at least four sessions in each year, at Albany, commencing respectively on the second Tuesday in January, April, September and November, and adjourned sessions elsewhere. L. 1884, p. 60, c. 60,- § 2.

Substitution of attorneys.] Rule 5 of the board of claims. In case of substitution of attorney for claimant, written notice of substitution shall be filed with the clerk, and notice thereof served on the attorney-general, and the clerk shall make the necessary entry thereof.”

Pleadings.] Rule 6. “Every claimant shall file a written or printed claim, which shall be entitled substantially:

IN BOARD OF CLAIMS.

A. B., Claimant. against > The State of New York. j

“ Shall state in a brief and concise manner the facts constituting the claim, the time when and the place where the claim arose, and shall annex thereto, and as a part thereof, a bill of particulars, stating in detail each and every item claimed, and the amount of such item.

“If the claim is for lands permanently or temporarily appropriated by the State, a specific description of the land, showing its location and amount of laud.

“Every claim shall state that the claim has never before been presented to any department or officer of the State, or, if it has been, shall state when and to what department or officer, and with what results, and what action has been had thereon.

“Every claim shall-state that said claim has not been assigned, or, if assigned, when and to whom, and shall state the name and residence of every person interested in the claim, and that no other-person has any interest therein, or if other person has any interest therein, shall state specifically what interest.

“ The claim and the bill of particulars shall be signed by the claimant or his attorney.

“ The claim shall be verified in the same manner as pleadings in the supreme court.

“ Every claimant, or his attorney, signing claim, shall indorse thereon his office and post-office address.”

Verification, filing, &cj\ Rule 7. “ No claim shall be filed by the clerk unless verified as required by these rules.”

RuIeS. “ Claims on the part of the State, to be used as counterclaims, shall be verified by attorney-general, or by a deputy, and shall be governed by the same rules as to claims against the State, and shall be filed before the hearing, or sufficient reason given for such omission.”

Rule 9. “ The claimant shall, at the time of filing his claim, or within ten days thereafter, deliver to the clerk twelve printed copies of his claim and bill of particulars, six of which shall be for the commissioners, three for the attorney-general, and three for the use of the clerk. If the claim does not exceed $200, written copies may be furnished. In case of claims on the part of the State, the attorney-general shall file like number of printed copies, three copies of which shall be by the clerk delivered to claimant or his attorney.”

Motions in nature of demurrer.] Rule 11. “ The attorney-general may, upon ten day’s notice, move to dismiss a claim, on the ground that the facts stated in claim, do not constitute a legal or equitable claim against the State. Such notice shall state particularly the ground of the motion, and point out specifically the alleged defects in the claim.

“ Any claimant, against whom a claim is filed as a counter-claim on the part of the State, may make like motion upon like notice to the attorney-general.”

Amendments.} Rule 12. "The board may, before the hearing, upon notice to the adverse party, or upon the hearing in furtherance of justice, amend any statement of claim or defense, by adding or striking out the name of a person as a party, or a mistake in any other respect, or by inserting an allegation material to the case; or where the "amendment does not change substantially the claim or defense, by conforming the statement of claim or defense, or other proceeding to the facts proved. And in every stage of the action the board must disregard an error or defect in the statement of claim or defense or other proceedings, which does not affect the substantial rights of the adverse party.”

Dismissal for want of prosecution.] Rule 4. At any session of the board any claim called in its order, on the regular call of the calendar, and at any adjourned session for the hearing of local claims, at which claims are specifically set down for hearing, any claim called in its order, aud in which no appearance shall be made for claimant, may, in the discretion of the board, be dismissed for want of prosecution.

The hearing.] Rule 17. “ Cases may be brought to hearing at any session of the board by either party, upon notice to the other, as prescribed by sections 977 and 980 of the Code of Civil Procedure.*

“ When the board has appointed a session to be held at any place other than the city of Albany for the hearing of local causes, and has made an order designating the causes to be placed on the calendar for hearing at that session, such causes shall be deemed to have been noticed by both parties.”

Evidence.] The Board of Audit has power to administer oaths, to take testimony in relation to any claim. L. 1876, p. 477, c. 444, § 2.

“Upon the hearing of all claims before the board the rules of evidence now prevailing in the courts of record of this State shall be observed, and the practice upon such hearings of claims . . . shall conform, as near as may be, to the practice now prevailing in the supreme court of this State upon the trial of actions.” L. 1884, p. 61, e. 60, § 7; amending L. 1883, c. 205, § 11.

In the adjudication of a claim against the State for the value of materials furnished in excess of the price received therefor, under contract, owing to erroneous computation or measurement, the State board of audit can proceed upon common law evidence only [L. 1876, c. 444 ; L. 1881, c. 211, § 3], and only claims so dealt with can be paid or allowed by the legislature. Swift V. State of N. Y., 89 N. Y. 52; rev’g 26 Hun, 508.

* Section 977 of Code Civ. Pro., is the one which prescribes notice of trial fourteen days before commencement of term, notice of issue at least twelve days before commencement of term.

The clauses in the sections of the Code here referred to are as follows :

§ 977, 1st clause. “At any time before the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial.”

There is also a local exception in the counties of New York and Kings, dispensing with two notices for succeeding term.

Section 980 provides that either party, who has served the notice, may bring the issue to trial; and, in the absence of the adverse party, unless the judge holding the term, for good cause, otherwise directs, may proceed with the cause, and take a dismissal of the complaint, or a verdict, decision, or judgment, as the case requires. An inquest, for want of an affidavit of merits, cannot be taken where the answer is verified.

Effect of canal commissioners award.] The State board of audit has pow.er to inquire into the justice or equity of a claim against the State, and is not concluded by a certificate of award thereon by the canal commissioners. [Citing Dobson v. Pearce, 12 N. Y. 156 ; State of Michigan v. Phoenix Bank, 33 Id. 9 ; Kinnier v. Kinnier, 45 Id. 535.] Bauk of Monroe v. State of N. Y., 26 Hun, 581.

Briefs.] Rule 10. “In all claims reserved for argument, printed copies of brief shall be delivered to the clerk. The clerk shall distribute same as copies of claims are distributed.”

Rule of decision.] The general act of 1876 provides that the Board is “ to determine on the justice and amount thereof, and to allow such sums as it shall consider should equitably be paid by the State to the claimants.” ' L. 1876, p. 477, c. 444, § 2.

The State is bound by its pleadings and admissions and by estoppel, and its own ratification, equally as any other party. State v. Taylor, 28 La. Ann. 460; State v. Ober, 34 Id. 359; S. C., 14 Reporter, 331; People v. Stephens, 71 N. Y. 527, and cas. cit.

Otherwise, it is said, of implied liens. Matter of De Cesnola, 9 Wash. L. Rep. 490. Compare U. S. v. Central Nat. Bk., 6 Fed. Rep. 134; S. C., 27 lnt. Rev. Rec. 66.

Although no action lies against the sovereign for a breach of a contract, yet, whenever that contract in any form comes before the ¿ourts, the rights and obligations of the parties to it must be adjusted upon the same principles as if the contracting parties were private persons. People v. Stephens, 71 N. Y. 527 (and see brief of counsel in 72 Id. 621).

When the State comes into court as a party, in a controversy with an individual, the intent of the legislature in any action it lias taken respecting it may be ascertained in the same manner as in a controversy between individuals where instruments executed by cither are to be construed in the light of environment, lb.

Followed in People v. Dennison, 19 Hun, 137 ; aff’d in 80 N. Y. 656.

The State cannot destroy or avoid the obligation of a valid contract., entered into by its authorized agents, unless "by express stipulation authorizing it so to do; and although it may refuse to perform or arrest performance by the contractor, its liability for the breach is the same as that of an individual, and the contractor is entitled to prospective profits. [Citing Lord v. Thomas, 64 N. Y. 107; Masterton v. Mayor, &c. of Brooklyn, 7 Hill, 61; People v. Stephens, 71 N. Y. 527, 549; U. S. v. Speed, 8 Wall. 77; U. S. v. Smith, 94 U. S. 214; Thompson v. U. S., 9 Ct. of Cl. 187; Jones v. Judd, 4 N. Y. 411; distinguishing McKee v. U. S., 12 Ct. of Cl. 504; S. C., 17 U. S. 233; The Apollon, 9 Wheat. 362; Jones v. U. S., 1 Ct. of Cl. 383; Deming v. U. S. Ib. 190; Wilson v. U. S., 11 Id. 513.] Danolds v. State of New York, 89 N. Y. 36; aff’g 14 Weekly Dig. 263.

As to the effect of compromises between a creditor of the State and its officers,—see Comstock v. U. S., 9 Ct. of Cl. 141.

Costs. ] It is to be observed that by § 15 of the act of 1883 (L. 1883, c. 205) a section not noticed in the amendatory act of 1884, it was provided that “ costs, witness fees and disbursements shall not be taxed, nor shall counsel or attorney fees be allowed by said board to any party.”

Effect of decision on appeal from canal board,.] A decision of the canal board, on an appeal from a decision by the canal appraisers upon a claim, is conclusive, if the respective boards have kept within their jurisdiction. [Citing People v. Dennison, 84 N. Y. 272; L. 1829, c. 368; L. 1868, c. 579; People ex rel. Seymour v. Canal Board, 7 Lans. 220; People ex rel. Benedict v. Dennison, 28 Hun, 328; Code Civ. Pro. § 2143.] People ex rel. Peck v. Canal Board, 29 Hun, 159.

The addition of the words “ appeal dismissed,” to an affirmance by the canal board of a decision by the canal appraisers does not take away the right to apply for a rehearing. Ib.

Motions.] Rule 14 prescribes that “ All motions shall be noticed for first day of session, or for such other days as shall be designated by the board.”

Hotices.] Rule 16 prescribes that “Any notice required to be served by the rules or practice of this board may be served by mail. If upon the claimant or his attorney, by directing same to him at the post-office address, indorsed upon claim filed.”

General regulations.] Rule 18. “ The time within which an act is required to be done, except time to bring an appeal, make a case or to file claims, may be extended by order of the board or a commissioner thereof.”

Rule 19. “The rules and practice of the supreme court, so far as the same may be applicable, and not inconsistent with these rules, shall be deemed rules of this board.”

Appeals.] Appeals to the court of appeals, where the amount exceeds $500, are allowed to be taken within thirty days after service of notice of the final order or award. L. 1884, p. 61, c. 60, § 6; amending § 10 of L. 1883, c. 205.

No security is required on appeal. L. 1884, p. 61, c. 60, § 7; amending L. 1883, c. 205, § 11.

—findings.] Rule 15 provides that “ when an appeal shall be taken from the award of the board, either party may present, at time of settlement of ease, requests in writing to find questions of fact and of law, setting forth the same as required by rules of supreme court.”

A finding by the State board of audit that a claim presented to the canal commissioners was fictitious and fraudulent is not required in express terms to warrant such board in rejecting the claim, if such a conclusion is warranted by the other facts found by such board and by the evidence. Bank of Monroe v. State of N. Y., 26 Hun, 581.

evidence.] On all questions not raised by the notice of appeal, it is to be presumed, in the court of appeals, that sufficient evidence was given on the hearing to sustain the order of the Board. L. 1884, p. 61, c. 60, § 7 ; amending L. 1883, c. 205, § 11. 
      
       Same principle, Clodfelter v. State, 86 N. Y. 61; S. C., 14 Rep. 410; Tate v. Salmon, 79 Ky. 540; S. C., 3 Ky. Law Rep. 359 ; State v. Ward, 9 Heisk. (Tenn.) 100 (prison contractor’s action for damages on being deprived of labor by great exercise of pardoning power); Raymond v. State, 54 Miss. 562 (action to compel set-ofl of cross-claims) ; Owen v. State, 7 Nebr. 108 (claim for goods sold and services) ; Clark v. State, 7 Coldw. (Tenn.) 306 (claim for loss through State banking system); Shoemaker v. Grant County, 36 Ind. 175 (claims for repayment from state treasury of illegal taxes exacted); Alamango v. Supervisors, 35 Hun, 551.
     
      
       Punishing willful injuries to the canals.
     
      
       Punishing the drawing off of water from the canals.
     
      
       To the same effect see, also, Kavanagh v. Wilson, 70 N. Y. 177.
     