270. 271. 272. 273. 274. 275. Session; duty of sheriff. Judgments. Duty of attorney-general and superintendent of public works. Expense of procuring testimony on commission. Annual report to comptroller. Costs not to be taxed. Appeals. 283. 284. Additional judges. Determination of appropriation cases; assignment of judge. § 263. Court of claims. The board of claims is hereby abolished and the court of claims re-established. Such court shall consist of three judges, to be known as judges of the court of claims, who shall be appointed by the governor, by and with the advice and consent of the senate. The judges first appointed shall be appointed for terms of three, six and nine years, respectively, from the first day of January of the calendar year in which such appointments shall be made. Thereafter the full term of office of each judge shall be nine years. Whenever the term of office of a judge shall expire, or his office become vacant from any cause, his successor shall be appointed for the unexpired term. Notwithstanding the provisions of section five of the public officers law, a judge of the court of claims shall hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified, but after the expiration of such term the office shall be deemed vacant for the purpose of choosing his successor. By an order to be filed in the office of the secretary of state, the governor shall designate one of the judges as presiding judge, who shall act as such during his term, and thereafter upon the appointment of his successor, the governor shall designate such successor or any other judge of the court as presiding judge, who shall act as such during his term. The office of commissioner of claims is hereby abolished, but the commissioners now in office shall continue to have the powers and duties of commissioners of claims until the appointment and qualification of judges of the court of claims, except that after this section as amended takes effect and until the appointment and qualification of judges of the court of claims they shall not hear, try or determine any claim, or entertain a motion or make an order affecting the substantial rights or a party. During the period of three months after the first appointment and qualification of judges hereunder, such commissioners shall have power to de • So in original. termine and dispose of questions, claims and matters which shall have been finally submitted to and heard by such board on or before January twenty-third, nineteen hundred and fifteen, in the same manner and with the same effect as if such board had not been abolished. Such commissioners shall for their services rendered during such period of three months receive compensation at the rate of five hundred dollars per month. A judge of the court of claims, appointed under the provisions of this section, as amended, must be an attorney and counselorat-law admitted to practice in the courts of this state, of at least ten years' experience in practice. A judge shall not during his term of office practice the profession of law, or act as referee in any action or proceeding in any court of this state. A judge shall not hold any other office or public trust to which any salary or compensation is attached, nor serve as a member of any political committee. Except as herein otherwise provided, the judges appointed under this section shall have jurisdiction to hear and determine all matters pending in the court of claims at the time they shall take office, and all matters pending in the board of claims at the time when this section, as amended takes effect, shall be heard and determined by the court of claims. But if any matter or claim be left undisposed of by the commissioners of claims, the court of claims shall have jurisdiction thereon. Whenever in this act or in any other statute, heretofore enacted or enacted at the legislative session of the year nineteen hundred and fifteen, reference is made to the board of claims or any officer thereof, the same shall be deemed to refer to and mean the court of claims or an officer thereof. A determination of the board of claims, heretofore rendered, shall have the same force and effect and be subjected to the same procedure as provided in this article for a judgment. (Am. by L. 1904, ch. 16; L. 1906, ch. 692; L. 1911, ch. 856; L. 1915, ch. 1.) L. 1915, ch. 100, § 2, provides: "The provisions of section two hundred and sixty-three of the code of civil procedure, as amended by chapter one of the laws of nineteen hundred and fifteen in relation to the qualification of judges of the court of claims, shall not prevent a judge of such court from serving as a member of a constitutional convention and receiving the salary or compensation attached to such office." Derivation.-L. 1883, ch. 205, § 1. Entirely reorganized as at present constituted by L. 1915, ch. 1. § 264. Jurisdiction. History. People ex rel. Swift v. Luce, 204 N. Y. 478. The court of claims possesses all of the powers and jurisdiction of the former board of claims. It also has jurisdiction to hear and determine a private claim against the state, including a claim of an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, which shall have accrued within two years before the filing of such claim and the state hereby consents, in all such claims, to have its liability determined. It may also hear and determine any claim on the part of the state against the claimant, or against his assignor at the time of the assignment, and must render judgment for such sum as should be paid by or to the state. But the court has no jurisdiction of a claim submitted by law to any other tribunal or officer for audit or determination except where the claim is founded upon express contract and such claim, or some part thereof, has been rejected by such tribunal or officer. In no case shall any liability be implied against the state, and no award shall be made on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity. No claim other than for the appropriation of land shall be maintained against the state unless the claimant shall within six months after such claim shall have accrued, file in the office of the clerk of the court of claims and with the attorney-general a written notice of intention to file a claim against the state, stating the time when, and the place where such claim arose and in detail the nature of the same, and of the items of damage alleged or claimed to have been sustained, which notice shall be signed and verified by the claimant, before an officer authorized to administer oaths. The attorney-general may require any person filing such a notice of claim for any cause whatever against the state to be sworn before him or one of his deputies designated by him for that purpose within the county of the claimant's residence, relating to such claim, and when so sworn, to answer orally as to any facts relative to the justness of such claim. Whenever any claim for the appropriation of property is pending or has been determined in the court of claims and the attorney-general is required by law to examine the title of the claimant thereto, prior to the payment of an award, the attorney-general may require such claimant to be sworn before him or one of his deputies designated by him for that purpose within the county of the claimant's residence, or if the claimant be a corporation within the county where its principal place of business in this state is located, or if the claimant be a nonresident within the county where the property is situated, relating to such title, and when so sworn, to answer orally as to any facts relative to the title to such property. The attorney-general may also require such claimant to file with him an affidavit stating any material facts relating to such title. Willful false swearing before the attorney-general or deputy attorney-general is perjury and punishable as such. Provided further, that nothing herein contained shall be construed to allow the court to hear any claim which as between citizens of the state would be barred by lapse of time or of any claim heretofore accrued and of which the said court or board has had jurisdiction and which was barred by lapse of time at the date when this section, as amended, takes effect. Provided further, that the court shall have jurisdiction, and may hear and determine all claims accrued and actually filed at any time prior to September first, nineteen hundred and twelve, and filed within two years from the time they accrued, though no notice of intention to file was given, as required by this section, if such claims when filed were not barred by lapse of time and the court or board had jurisdiction and authority to hear and determine the same except for the lack of such notice; and such jurisdiction shall attach without refiling or previous notice. (Am. by L. 1905, ch. 370; I.. 1906, ch. 692; L. 1908, ch. 519; L. 1912, ch. 545; L. 1915, ch. 1; L. 1917, ch. 264; L. 1919, ch. 157, in effect Sept. 1, 1919.) Derivation.-L. 1883, ch. 205, § 7. as amended by L. 1884, ch. 60. The jurisdiction has been extended to include substantially all claims against the state. "Individual or corporation."O'Bryan v. State of New York, 68 Misc. 618, 125 N. Y. Supp. 490. Jurisdiction of claim for salary. O'Neil v. State of New York, 223 N. Y. 40. Jurisdiction to determine title of land as between claimant and state. People ex rel. Palmer V. Travis, 223 N. Y. 150. Consent to submit to jurisdiction. - People v. Dennison, 84 N. Y. 272; Rexford v. State, 105 N. Y. 229; Stone V. State, 138 N. Y. 124; Locke v. State, 140 N. Y. 480. Statutes conferring jurisdiction.— Roberts v. State, 160 N. Y. 217. Notice of intention to file claim.Buckles v. State of New York, 221 N. Y. 418; Butterfield v. State, 221 N. Y. 701; Coble v. State of New York, 173 App. Div. 921, 157 N. Y. Supp. 1120; Butterfield v. State, 178 App. Div. 292, 165 N. Y. Supp. 3. Failure to file notice of intention.Rogers v. State of New York. 184 App. Div. 340. 171 N. Y. Supp. 337. Statute of limitations.- Hanger v. Abott, 6 Wall. (U. S.) 532; Corking v. State, 99 N. Y. 491, 16 Abb. N. C. 448; O'Hara v. State, 112 N. Y. 146; Folts v. State, 118 N. Y. 406; Yaw v. State, 127 N. Y. 190; Gates v. State, 128 N. Y. 221; Parmenter v. State, 135 N. Y. 154; Peck v. State, 137 N. Y. 372; Cayuga County v. State, 153 N. Y. 279. Trespass by state. Remington v. State of New York, 116 App. Div. 522, 101 N. Y. Supp. 952. Claim for damages from injunction unlawfully granted.— Herkimer Lumber Co. v. State of New York, 73 Misc. 501, 131 N. Y. Supp. 22. Claim for stamps.- Flower v. State of New York, 143 App. Div. 871, 128 N. Y. Supp. 208. Claims upon contract.- Quayle v. State of New York, 192 N. Y. 47, affg. 124 App. Div. 81, 108 N. Y. Supp. 361; Quayle v. State of New York, 124 App. Div. 81, 108 N. Y. Supp. 361, affd., 192 N. Y. 47; Flower v. State of New York, 65 Misc. 145, 121 N. Y. Supp. 96. § 265. Rules and procedure. V. Contract with state officers.- Danolds v. State, 89 N. Y. 36; O'Hara v. State, 112 N. Y. 146; Nussbaum v. State of New York, 119 App. Div. 755, 104 N. Y. Supp. 527; appeal dismissed, 190 N. Y. 542; Watson Empire Engineering Corporation, 77 Misc. 543, 137 N. Y. Supp. 231. Claim by counsel employed by attorney-general.- Kirby v. State of New York, 68 Misc. 626, 125 N. Y. Supp. 742. Claim for excess fees paid under protest. Fifth Ave. Coach Co. V. State of New York, 73 Misc. 498, 131 N. Y. Supp. 62. Negligence of state.- Arnold V. State of New York, 163 App. Div. 253, 148 N. Y. Supp. 479; Burke v. State of New York, 64 Misc. 558, 119 N. Y. Supp. 1089. Negligence or malfeasance of state officers.- Lewis V. State of New York, 96 N. Y. 71; Smith v. State of New York, 169 App. Div. 438, 154 N. Y. Supp. 1003. Canal claims.- Splittorf v. State, 108 N. Y. 205; Ballou v. State. 111 N. Y. 496; Donahue v. State. 112 N. Y. 142; Woodman v. State, 127 N. Y. 397; Gates v. State, 128 N. Y. 221; Stone v. State, 138 N. Y. 124; Watson v. Empire Engineering Corporation, 77 Misc. 543, 137 N. Y. Supp. 231. Validity of title to lands taken. People ex rel. Smith v. Sohmer, 163 App. Div. 830, 149 N. Y. Supp. 276. Audit by legislature.-Cole v. State, 102 N. Y. 54; O'Hara v. State, 112 N. Y. 146. Limitation of amount of award.— Collins v. State of New York, 103 Misc. 217. The court may establish rules for its government, and the regulation of practice therein; prescribe the forms and methods of procedure before it, vacate or modify judgments, and grant new trials, and except as otherwise provided in said rules and regulations, or the code of civil procedure, the practice shall be the same as in the supreme court. Rules of the board of claims or former court of claims, now in force, shall continue to be the rules of the court of claims until changed by such court. (Am. by L. 1906, ch. 692; L. 1915, ch. 1.) Derivation.-L. 1883, ch. 205, § 3, in part. Evidence.- McDonald v. State. 127 N. Y. 18; Stone v. State, 138 N. Y. 124. Motion for nonsuit.- Dermott v. State, 99 N. Y. 101; Spencer v. State of New York. 187 N. Y. 484, affg. 110 App. Div. 585, 97 N. Y. Supp. 154. § 265-a. Perpetuating testimony. Reopening case. Chaphe v. State, 117 N. Y. 511; Lakeside Paper Co. v. State, 15 App. Div. 169, 44 N. Y. Supp. 281. Decision. Ostrander v. State of New York, 192 N. Y. 415, affg. 126 App. Div. 938, 110 N. Y. Supp. 1139; Smith v. State of New York, 214 N. Y 140. At any time after a claim shall have been filed against the state, testimony in relation thereto may be perpetuated, upon the application of the attorney-general or of a claimant to the court of claims or a judge thereof, in accordance with rules and regulations which the court of claims is hereby authorized to establish for the purpose, or, in the absence thereof, in substantial accordance with chapter nine, title three, articles one and two of the code of civil procedure; provided, however, that at any time after the state shall have lawfully appropriated lands, structures, waters, franchises or any other property whatsoever, the attorney-general or a claimant may apply to a justice of the supreme court for the perpetuation of testimony pursuant to chapter fourteen, title one, article ten of the code of civil procedure and upon such application it shall not be necessary to show that the property for one year next preceding the date of the petition has been in the possession of the state, or in the possession of the state and those from whom the state derives title, either as sole owner or as joint tenant or as tenant in common. The court of claims or the judge thereof or the justice of the supreme court to which or to whom any such application is made may direct the depositions to be taken before the court of claims or before one or more judges thereof or before an official referee acting pursuant to either chapter two hundred and twenty-nine of the laws of nineteen hundred and eleven or section one hundred and fifteen of the Judiciary Law. (Added by L. 1918, ch. 180.) Derivation.- New. § 266. Officers. The court of claims shall appoint and may at pleasure remove, a clerk, a stenographer, and an attendant, who shall also act as messenger; and they shall perform such duties as the court may prescribe. Before entering upon the duties of his office, the clerk shall make and file in the office of the comptroller, a bond for the faithful performance of his duties in an amount and with sufficient sureties to be approved by at least two of the judges, which approval shall be endorsed on said bond. The court may also appoint such other employees as may be needed. The clerk and stenographer appointed by the board of claims are continued as such officers and employees of the court of claims until the appointment and qualification of their successors. (Am. by L. 1906, ch. 692; L. 1909, ch. 586; L. 1911, ch. 856; L. 1915, ch. 1.) Derivation.— L. 1883, ch. 205, § 2, as amended by L. 1890, ch. 403. § 267. Seal of court. The court shall adopt and procure an official seal, with suitable device and inscription. A description of such seal, with an impression thereof, shall be filed in the office of the secretary of state. The expense of procuring such seal shall be paid out of the contingent fund of the court. Derivation.-L. 1883, ch. 205, § 6, in part, as amended by L. 1884, ch. 60. § 268. Sessions; duty of sheriff. The court shall hold at least eight sessions each year, and unless otherwise ordered by the court shall be held as follows: On the fourth Monday of January at the city of Albany; on the third Monday of February at the city of Syracuse; on the fourth Monday of March at the city of Utica; on the fourth Monday of April at the city of Albany; on the fourth Monday of May at the city of Rochester; on the third Monday of June at the city of Buffalo; on the fourth Monday of September at the eity of Albany; on the fourth Monday of November at the city of Albany, and it may also hold adjourned or special sessions at such other times and places in the state as it may determine. It may also hold a session and take testimony where the claimant resides or where the claim is alleged to have arisen, or in the vicinity, and may view any premises affected by the proceedings, and in case of any appropriation of land by the state, the value of which shall exceed five hundred dollars, it shall be the duty of the court, or the judge or judges hearing the claim, to view the premises affected by the appropriation. The sheriff |