#### The People of the State of New York ex rel. George G. Smith, Appellant, *v.*William Sohmer, as Comptroller of the State of New York, Respondent.

Third Department,

September 23, 1914.

Court of Claims—jurisdiction — award of damages not res adjudicata as to validity of land title — practice — deposit of award.

The Court of Claims, having only the jurisdiction conferred by statute, has no power to pass upon the validity of a title to lands taken from a claimant by eminent domain for canal purposes.

Hence, where the claimant’s title is confessedly defective in that it is subject to contingent remainders in favor of persons yet unborn, an award *831of damages by the Court of Claims is not a judicial determination that the claimant’s title is good, and a peremptory writ of mandamus will not issue to compel the Comptroller to pay over the award.

*It*seems, that under such circumstances the claimant is entitled to have the award deposited by the Comptroller at interest, to be distributed to the persons entitled thereto, as ordered by the Supreme Court, pursuant to the provisions of section 88 of the Canal Law, and until such distribution the claimant is entitled to interest on the award.

Appeal by the relator, George G. Smith, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 9th day of April, 1914, denying his motion for a peremptory writ of mandamus and dismissing the proceedings.

*William F.*Lynn, for the appellant.

*Thomas Carmody, Attorney-General [Henry Selden Bacon, Deputy Attorney-General,*of counsel], for the respondent.

Lyon, J.:

In 1910 the State appropriated for barge canal purposes lands of which the relator claimed to have title. The relator thereupon filed with the Court of Claims a claim for such appropriation, which upon trial in said court resulted in November, 1911, in a judgment for $2,545.86. Thereafter there was filed with the State Comptroller a certified copy of the judgment, a certificate of no appeal by the Attorney-General, a 'release and waiver of lien by claimant’s attorneys, and an abstract of title of the premises. The Attorney-General disapproved of the abstract of title, and the Comptroller for that reason refused payment of the judgment. The relator claiming that the Court of Claims possessed jurisdiction to determine whether he had a good title, and also jurisdiction to determine the value of such title, and that the question of his title had been submitted to and passed upon favorably by the Court of Claims, applied for a peremptory writ of mandamus directing the Comptroller to pay the judgment. The respondent filed answering affidavits, and an alternative writ was thereupon issued to which the respondent made return. The issues thus raised were brought to trial before the Special Term under a stipulation that the court should decide the facts and the law. The court decided that the title held by relator was not a *832marketable title but was defective in that it was subject to a contingent remainder in behalf of persons 'yet unborn, and that in the trial before the Court of Claims the question of what title the claimant had in the lands was not submitted to the court for its determination, nor was the abstract of title before the court for its consideration. The Special Term held as conclusions of law that the Court of Claims was without jurisdiction to determine any issue with regard to the nature of the title held by the relator, and that that court did not in fact make such determination, and that the respondent was entitled to an order dismissing the proceeding. From the order denying the writ of mandamus and dismissing the proceeding this appeal has been taken. Unquestionably the relator had not a marketable title to the lands appropriated, and he does not now contend that he did have such title. He relies for success on this appeal upon the claim that the Court of Claims had jurisdiction to determine as to the validity of his title; that such matter was submitted to that court to determine, and that the court made such determination, and accordingly made the award. Upon the other hand, the respondent contends that the Court of Claims had not jurisdiction to determine as to the validity of relator’s title; that it did not assume to make such determination, and that the relator is not entitled to receive payment of the award for the reason that he has not complied with a requirement necessary to obtain payment in that he has not filed with the Comptroller a satisfactory abstract of title showing that he is legally entitled to such damages.

The Court of Claims, being a statutory court, did not have jurisdiction to pass upon conflicting titles and it had only such powers as were conferred upon it by statute *(Taylor*v. *State,*124 N. Y. Supp. 818; *People ex rel. Swift*v. *Luce,*204 N. Y. 478); and the evidence fails to establish the relator’s contention that that court assumed to pass upon the validity of relator’s title, and sustains the finding of the trial court that the Court of Claims did not assume to do so.

Evidently the determination *of*the Court of Claims was not intended to fix the value of relator’s interest in the lands appropriated, but to determine the value of a marketable title *833to such lands. While the relator, not possessing such title, was, therefore, not legally entitled to receive the award, he was, however, entitled to have the award deposited by the Comptroller at interest in a bank in which moneys belonging to such fund may be deposited to the account of such award, to be paid and distributed to the persons entitled thereto as ordered by the Supreme Court on an application to such court pursuant to the provisions of section 88 of the Canal Law (Consol. Laws, chap. 5; Laws of 1909, chap. 13), and until such distribution shall be made to have paid to him, his heirs and assigns, annually, during the lifetime of William Smith the interest on said award.

The order appealed from should, therefore, be reversed and a writ of mandamus ordered issued directing the State Comptroller to make such deposit of the award.

All concurred.

Order reversed, without costs, and mandamus directed to issue as per opinion.