#### James Folts, App’lt, *v.*The State of New York, Resp’t.

*(Court of Appeals, Second Division,*

*Filed January 31, 1890.)*

1. Board op claims—Continuing damages.

Plaintiff, in December, 1878, under the law then in force, duly prrsented his claim to the canal appraisers, and it not having been heard or determined it was transferred under Laws 1883, chap 205, to the board of claims which dismissed it as barred by the statute of limitations, and on the ground that they had no jurisdiction. *Held,*error; that although part of the claim may not have been presented within the two years’ limit there was a just claim of $213.50 which the court should have awarded.

*433. Appeal—Court of appeals—Amount in controversy.

Respondent claimed that as this was less than $500 this court had no jurisdiction to hear the appeal. *Held,*that as by the claim presented of items of dates within the two year’s limit, the claimant *may*be awarded. $501, this court will direct a rehearing of the claim.

Appeal from order of board of claims, dismissing plaintiff’s, -claim as barred by statute of limitations.

*J. B.*Rafter, for app’lt; *Jno. W.*Hogan, deputy att’y-gen’l, for resp’t.

Potter, J.

This is an appeal from an order made by the board of claims on the 10th day of June, 1885, dismissing the claims of the appellant -upon the ground that it appeared upon the face of the claims that they were barred by the statute of limitations, and that the board of claims had not jurisdiction to hear and determine the same.

The claims were in due form and verified and were duly presented on the 9tli day of December, 1878, to the canal appraisers and filed under the law then in force, and not having been heard or determined under such law were transferred under the act, chap. 205, of the Laws of 1883, to the board of claims and was by this tribunal heard and determined by dismissing the entire claim as above stated.

The question to be determined upon this appeal therefore is whether all of the claims of the appellant were barred by the statute of limitations.

The claims presented were for damages to the claimant’s lands, to the trees growing thereon and his well of water located thereon, for labor in making and raising a roadway thereon above the wet soil, and digging ditches to carry off the water which flowed thereupon from the respondent’s canal and the fences injured or carried away by the same, and the temporary use and occupation of the claimant’s lands by the respondent, its officers and employees in making repairs to the canal, the injury to the grass thereon and the removing therefrom the debris left by the respondent.

From the respondent’s points it appears that while at and before the time of making the award upon these claims it had been held by the board of claims that damages arising from the canal from a continuing injury were barred by the statute of limitations unless filed within two years from the time when the damages first accrued, the court of appeals had since the award in this case was made held that a party presenting and proving a claim for continuing damages is entitled to recover for the damages accruing within the period of two years immediately prior to the time -of filing the claim. *Reed*v. *The State of New*York, 108 N. Y., 407; 13 N. Y. State Rep., 815.

The respondent concedes under this holding that the board of claims erred in dismissing the entire claim and that that court should have awarded the appellant a portion thereof, at most the sum of $213.50, and that as this sum is less than $500, the amount that is necessary to give this court jurisdiction, this court *44should dismiss the appeal and thus deprive the appellant of the gum or of an opportunity to prove the sum which the counsel for the state concedes the state owes the appellant.

It was no doubt pretty hard upon the claimant when the court ruled that he was not entitled to receive anything from the state because he had not demanded it earlier and oftener, or in the language of Judge Earl, in *Corkings*v. *The State,*99 N. Y., 499, “when the state has no other or better defense than the statute of limitations.” But it would seem to be harder still upon a claimant whose entire claim was rejected upon the statute of limitations, if the respondent should now be allowed to defeat the portion of the claim which the statute of limitations cannot defeat, by having the appeal dismissed for the reason that that portion of the claim does not amount to $500, and that too in a case between the citizen and the state' standing *in loco parentis.*

If the concession or the assumption of the state is true, viz., that the statute of limitations cannot prevail against a portion of the claim, it would seem apparently as easy as it is just for the state to have tendered a stipulation to the claimant modifying the award by allowing so much of his claim as the statute of limitations cannot defeat or an opportunity to prove that portion.

But in the absence of such disposition of this appeal between the claimant and the state, we must examine and dispose'of the appeal.

Under the statute,' Laws of 1870, chap. 321, and chap. 205 of the Laws of 1883, there can be no question that the board of claims had jurisdiction of the claims presented, and to make an award against the state, if the proof should sustain the claim as presented aside from the statute of limitations. The state does not contend to the' contrary. " The question now to be considered is when the statute of limitations begins to run upon the claims ? Section 2 of the act of 1870, *supra,*requires that the claimants “ shall file their claims in the office of the canal appraisers within two years from the time said damages shall have accrued, but claims for damages which shall have accrued more than one year prior to the passage of this act shall be filed within one year from the date-hereof * * * .”

There can be no contention or difference of opinion that claims involved in this appeal must be presented within two years from the time damages accrued, and the court of appeals has held that in the case of continuous injury the damages accruing within the two years immediately preceding the time of filing the claim are not barred by the statute. *Colrick*v. *Swinburne,*in Ct. App., 8 N. Y. State Rep., 173; opinion by Judge Andrews; Uline *v. N.Y. Cent. & H.R.R. R. Co.,*101 N. Y., 98.

This conclusion requires that the award be reversed, and the claim sent back to the board of claims for a rehearing.

It may not be amiss to add upon the subject of dismissing this appeal, that we understand by “ the amount in controversy,” in § 10 of the act of 1883, *supra,*to be the amount of the claim presented, or the amount which the board of claims may legally award the claimant under the proofs, with interest.

*45Looking at the claim with the dates as therein stated, and excluding those items which may be excluded, as shown by their dates not to be within the two years immediately preceding the time of filing the claim, the claimant *may*be awarded $501, without including any interest, and if the proof given upon the hearing should show that some of the items which now appear to be outside of the two years’ period were in fact within that period, the board of claims, by the exercise of the power of amendment which it possesses, and the liberality with which claims of this character are to be treated, the award might be considerably above $500. In any view of this appeal the award should be vacated, and the board ordered to rehear the claims.

All concur.