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Court of Claims, March, 1921.

[Vol. 115.

rowed sums aggregating $1,400 from one Samuel K. Kellock, and on that date made and delivered to Kellock a written assignment of all the money due and to grow due under the claimant's contract with the state, the assignment containing a clause authorizing Kellock, as the claimant's attorney, irrevocably in claimant's name, to demand and receive such payments and to receipt for them.

The claimant's contract provided that he would not transfer or assign any of the money due tọ him under the contract without the consent in writing of the state, and that in the absence of such consent no claim of payment should exist in favor of any person to such money.

On or before December 15, 1911, the claimant completed the repayment to Kellock of the loan above mentioned in full. On August 31, 1911, the state paid to the claimant on account of his contract the sum of $4,421.55.

On July 3, 1912, the state architect issued a certificate for final payment on the contract in the sum of $721.66, the latter sum being arrived at by deducting from the total amount of the contract the payments previously made, various deductions for credits to which the state was entitled, and $1,620, as liquidated damages at $10 a day, for 162 days' alleged delay in completing the contract. A voucher with an advance receipt attached was forwarded to the claimant for execution, the voucher describing the sum of $721.66, as the total and final balance due and payable to the claimant on the contract. The claimant refused to execute the receipt and retained the voucher until July 3, 1913, when, after being assured by certain state employees in the hospital commission that he would not prejudice his claim for the sums which had been. deducted by the state, he executed the receipt and

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Court of Claims, March, 1921.

delivered the voucher to the commission, demanding at that time, by letter, payment of the balance which he claimed. In response, he received a letter from the treasurer of the commission under date of July 7, 1913, informing him that payment of this voucher for $721.66 had been made in February, 1913, to Samuel J. Kellock as assignee. The facts are: That on July 18, 1912, without claimant's knowledge, Kellock had filed in the office of the state comptroller the assignment made to him by the claimant, and on February 1, 1913, the treasurer of the commission had executed a duplicate of the certificate and voucher above mentioned; that the duplicate voucher was receipted by "Samuel K. Kellock, Claimant, Assignee of William Henderson," and on February 5, 1913, check for $721.66 was issued by the commission to Kellock, as assignee of the claimant, and Kellock collected it, no part of it ever reaching the claimant.

In response to the letter of July 7, 1913, from the treasurer of the commission, the claimant on July 9, 1913, wrote to the latter informing him that the loan for which the assignment to Kellock had been made, had been fully paid, and notifying him to pay no more money on the contract to Kellock, or to anyone else, without first informing claimant.

On July 18, 1913, the state architect advised the commission that the enforcement of the penalties which had been asserted by the commission, was not justified. On July 21, 1913, Kellock executed a power of attorney to some one, whose identity has not been established, to collect from the commission all money due or to become due from it to Kellock, to receipt for it and to sign, indorse and deposit the check received in payment. On July 25, 1913, the commission asked the attorney-general for an opinion as to the validity of the alleged penalty, and that official on

Court of Claims, March, 1921.

[Vol. 115.

July 28, 1913, advised the commission that a substantial sum could not be deducted from this contract under the guise of liquidated damages. Thereupon, on August 5, 1913, the commission, by resolution, authorized the state architect to issue a "special order" in full settlement of the contract, for $1,588, being the above-mentioned sum of $1,620, less a deduction of $32 with which we are not concerned. The secretary of the commission on that day notified the superintendent of the hospital to forward estimate in this amount and voucher" in favor of William Henderson," adding: "It will not be necessary to have Henderson's receipt attached to the voucher as he has assigned his claim to another. The same is filed with the State Comptroller." On the same day, August 5, 1913, the state architect issued a "special order" with a final certificate for $1,588 to William Henderson. On the following day a voucher was made under the special order and certificate to "Samuel J. Kellock, Assignee of William Henderson," certified by the steward of the hospital and receipted August 7, 1913, by" Samuel R. Kellock, Claimant, Assignee, by George F. Kelly, Atty." Upon this voucher, under date of August 7, 1913, the treasurer of the commission, for the state, drew a check for $1,588, to the order of Samuel J. Kellock as assignee of the claimant. George T. Kelly is an attorney at law, and a former member of assembly, of Albany. He had obtained, in some unexplained manner, the power of attorney last mentioned made by Kellock, and the name of the attorney named in the instrument having been erased by someone, Kelly inserted his own, and on August 8, 1913, presented and filed the document so altered with the treasurer of the commission, and received from him the check last mentioned, and indorsed it "Samuel K. Kellock, Assignee, George T.

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Court of Claims, March, 1921.

Kelly, Atty." Kelly used the check, obtained the proceeds and, so far as it appears, converted the money to his own use. In any event, no part of it reached the claimant.

Kelly was a witness under subpoena, and testified most reluctantly. He declined to say what became of the money obtained on the check, on the ground that it might tend to incriminate him. Several other questions were unanswered by Kelly on the same plea. It also appeared on the trial that the letter from claimant to the treasurer of the commission, under date of July 9, 1913, was missing from the files of the commission.

The claimant was unaware of the payment to Kelly, and of all the above-mentioned events subsequent to July 9, 1913, until December 11, 1913, when the state comptroller, by letter, informed the claimant's attorney that payment had been made on August 8, 1913, "to Samuel K. Kellock" under the assignment.

Notice of intention was filed by the claimant on February 19, 1914, and this claim was filed on March 21, 1914.

Discrepancies in middle letters of names of persons evidently were inadvertent and of no importance.

The facts disclose a fraud, amazing and rarely paralleled in effrontery. Not less astounding than the fraud itself, is the fact that the administration of the criminal law in this state permitted the Statute of Limitations to run against the offences involved without the visitation of any punishment upon the perpetrators. Kelly and perhaps others concerned — is a member of the bar. It is unlikely that the attorneygeneral, cognizant as he is of the fact, will permit the matter to slip into oblivion. The Appellate Division has jurisdiction of the appropriate inquiry. Of course, this tribunal is impotent in that respect.

Court of Claims, March, 1921.

[Vol. 115.

The determination of this claim raises several interesting and novel considerations, a solution of the first of these being determinative of the case. Section 264 of the Code of Civil Procedure provides: "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," etc.

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A failure to comply strictly with this statutory provision is a defect which is jurisdictional, prevents a determination of the claim on its merits, and requires its dismissal. Buckles v. State of New York, 221 N. Y. 418; Butterfield v. State of New York, Id. 701. It is clear that, if the claim did not accrue within six months prior to February 19, 1914, when notice of intention was filed, this court has no jurisdiction of it, whatever its merits otherwise. Our essential and necessary inquiry, therefore, is simple and confined to a narrow field: Were any acts done or performed, or did any facts transpire within the period indicated, which constituted an accrual of the claim? The only occurrence affecting the claim in any respect during that period, was the discovery by claimant on December 11, 1913, through correspondence with the state comptroller, of the disbursement of the sum of $1,588 to Kellock, or to Kelly ostensibly representing the latter, and later, the acquisition by the claimant of evidence with which to establish that transaction. Obviously, unless this discovery and acquisition of facts constituted an accrual of the claim, the claim did not accrue within six months prior to the filing of the notice of intention, irrespective of whether it accrued previously or not.

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