#### Oliver A. Quayle, Appellant, *v.*The State of New York, Respondent.

Third Department,

January 10, 1908.

Court of Claims — jurisdiction — "balance due on contract—damages for "breach of contract.

Since section 264 of the Code of Civil Procedure provides that the Court of Claims has no jurisdiction of claims submitted by law to any other tribunal for audit or determination, a claim against the State for a balance unpaid for work performed under a specific contract is properly dismissed, for such a claim must be audited under the State" Finance Law which provides that the Comptroller shall “keep, audit and state all accounts in which the State is interested ” and “ examine, audit and liquidate, the claims of all persons against the State where payment thereof out of the treasury is provided for by law.’’

A special act is not required to give the Court of Claims jurisdiction of a claim for damages consisting in loss- of profit resulting from the refusal of the State to perform a contract lawfully made. •

Appeal by the claimant, Oliver A, Quayle, from a judgment of the Court of Claims of the State of New York in favor of the *82defendant, entered in the office of the clerk of said court on the 2$th day of January, 1907, dismissing the appellant’s claim.

*George H.*Stevens, for the appellant.

*William S. Jackson, Attorney-General,*and *Timothy I. Dillon, Deputy Attorney-General,*for the respondent.-

Smith, P. J.:

The claim dismissed was presented in two counts. The first count contained a claim for a balance remaining unpaid for work for the State under a specific contract. The second contained a claim for damages, consisting in loss of profit resulting from the refusal of the State tti perform a contract lawfully made. Both claims were dismissed upon the ground that there had been, no special act giving jurisdiction to the Court of Claims to hear them. 'This question has been passed upon by us heretofore in two cases. *(Remington*v. *State of New York,*116 App. Div. 522; *Nussbaum*v. *State of New York,*119 id. 755.) This latter case was appealed to the Court of Appeals, and the appeal was there dismissed (190 N. Y. 542).

If no other reason existed for the dismissal of the claims, we would be compelled to reverse the judgment and order a new trial. The Attorney-General urges, however, that- as to the first claim, the judgment must be sustained because under section 264 of the Code of Civil Procedure, prescribing the’ .jurisdiction of the Court of Claims, this claim is especially excepted. The 4th sentence of the section provides: “But the court has no jurisdiction of a claim submitted by law to any other tribunal or officer for audit or determination.” By subdivisions 2 and 4 of section 4 of chapter 413 of the Laws of 1897 (State Finance Law) it is provided : “ The comptroller shall * ' * *' 2. Keep, *audit*and. state all. accounts in • which the State is interested, and keep accurate, and proper books, showing their conditions at all times. * * * 4. Examine, *audit*and liquidate the claims of all persons against the State; if payment thereof out. of . the treasury is provided for by law.” We can see no answer to the State’s contention that' the claim contained in the claimant’s first count is one of those excepted by the pro-' vision of the statute above quoted. It cannot matter whether the *83claim be required to be audited under a special or general statute. In either case the language of the exception is plain and, in our judgment, clearly includes that part of the claimant’s claim which is for moneys unpaid upon contract for work actually performed. As to the first claim, therefore, the judgment of dismissal was right. As to the second claim it should be reversed and a new trial directed.

The judgment should be modified aS per opinion, and as modified affirmed.

All concurred.

judgment modified as per opinion, and as modified affirmed, with costs to appellant.