Bissell v. State of New York (70 A.D. 238, 1902)

Kellogg, J.:

The claim of plaintiff is one of considerable magnitude for work performed and material furnished under written contracts with the managers of the Buffalo Asylum between 1871 and August, 1877. The defendant admits all the' facts as alleged by plaintiff, and this is an admission of merits in the claim, and plaintiff should have had judgment for a large sum if the defense of the Statute of Limitations is not a complete defense. As to the Statute of Limitations the plaintiff urges that by reason of his efforts to collect the claim the claim has not become stale and the six-year statute has not run. It is admitted that the last item of the claim accrued as early as August 6, 1877, and the proof shows that the larger part of the claim accrued many months prior to that date. The claim upon which the adjudication is here for review was presented to the Board of Claims in August, 1895. We have here at least eighteen years to account for. What is it that suspended the running of the statute during that time I The record shows that the first step taken in the line of collection of the claim was a writ of mandamus to the managers of the asylum, taken out in December, 1878, to compel the managers tQ measure the stone furnished as by the contract provided. This mandamus proceeding was allowed to slumber until March, 1888. But this proceeding was not a proceeding between plaintiff and the State of Ne~v York, and the claim is against the State of New York. The State was not a party and the Oourt of Appeals, by EABL, ~J., says in Peck v. State (137 N. Y. 375): "While they (the managers) represented the State in making the contracts with Linus Jones Peck & Co., they did not ~taud in the place of the State in any suit brought against them either for misfeasance or nonfeasance in the discharge of the duties devolved upon them by law. No provision is found in any ~tatute giving them authority to represent the State in any litigation, or giving the consent of the State to be. bound by any adjudication to be made against them." We must, I think, conclude that• this mandamus proceeding against the managers did not have the effect of staying the running of the Statute of Limitations. It was not a proceeding or suit against the State. It was not a necessary step to be taken preliminary to the bringing of the matter before the State Board of Audit where such claims could properly have been adju~ted. In the case above cited (Peck v. State) it was by the court said: "If upon their demand (upon the mmlagers) payment ~as refused, they could have insti tuted proceedings before the State Board of Audit and could thus have had their claim adjudicated and gould have obtained payment of any award made to them."

I do nOt think there i~ any force in the plaintiff's contention that because the appropriations for the construction of the asylum constitutCd a special fund out of which plaintiff's claim was to be paid, and by the law this fund was placed practically in charge of the thanagers, that for such reaton plaintiff was denied access to the State Board of Audit to have the claim adjudicated. The case of Peck v. State (supra) is authority against that proposition~ and the claim thei~e referred to is the claim now before us.

It is also difficult to see how the action brought by the State against plaintiff's assignor, Linus Jones Peek & Co., charging over-estimates and over-payments, or the action by Linus Jones Peck