Misc.] Court of Claims, March, 1921. The payment to Kelly, which was the last occurrence of any sort, other than such discovery and acquisition of evidence, was made on August 8, 1913, several days more than six months previous to the filing of the notice of intention. The claimant's attorney evidently recognizes this difficulty. He argues that the claimant had six months after the discovery of the allowance and payment to the wrong party in which to file his notice of intention. He calls to our attention no New York decision to that effect, contenting himself with the argument that such is the rule between individuals in cases of fraud. The principle which evidently claimant's counsel has in mind, has its authority in an express statute, which provides a sixyear period of limitation in "Any action to procure a judgment on the ground of fraud," and then continues, The cause of action, in such a case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud." Code Civ. Pro. § 382, subd. 5. Of course, this claim is not to procure a judgment other than for a sum of money; nor is it a claim on the ground of fraud. Therefore, the statute and principle involved, have no application here. This claim is in contract. If it were not, this court would have no jurisdiction of it, in the absence of a statute waiving the state's exemption from liability. Smith v. State of New York, 227 N. Y. 405. Being in contract, the statute ran against it from the moment that a claim could have been maintained by the claimant. 1 Wait Pr. 236; Greenwood v. Judson, 109 App. Div. 398; Matter of Goss, 98 id. 498; Cary v. Koerner, 200 N. Y. 253. Clearly, therefore, this claim, if it accrued at all, accrued previous to August 19, 1913. This conclusion requires its dismissal. Court of Claims, March, 1921. [Vol. 115. We may advert briefly to other questions presented by the facts, although a determination of the claim does not necessitate their solution. It now is contended by the claimant that all payments made by the state upon the authority of his assignment to Kellock, were invalid because of the contract provision to which we have referred, prohibiting such transfer or assignment without the consent in writing of the state, and that in the absence of such written consent, payments made by the state to the assignee, avails the state nothing. We are not impressed by this argument. The contractual provision was inserted solely for the protection and benefit of the state. If the latter waived the requirement and recognized the transfer by making payment pursuant to its terms, that waiver affords no basis for action against the state. The claimant now is in no position to repudiate his own assignment, made by him without the consent in writing of the state, on the ground that the state waived the provision which existed solely for its benefit. Also, it is entirely clear to us that the payment by the state of $721.66 to Kellock, on February 5, 1913, constituted a discharge and payment pro tanto on the contract, the payment having been made before notice to the state of the alleged invalidity of the assignment and revocation of its power of attorney. If the state had the right to recognize the assignment, payments made under it, in the absence of notice of its revocation or invalidity, protect the state and discharge the latter's obligation to the extent of such payments. The state argues that the assignment and power of attorney to Kellock were irrevocable and consequently, that all payments made to the assignee were valid, including payment made after notice of the alleged revocation. Of course, if the state be correct Misc.] Court of Claims, March, 1921. in this contention it is a reason why the claim should fail in toto. However, we refrain from consideration of that question, disregarding, for the purpose of the discussion, the state's position in this respect. The state contends very earnestly that the alleged claim never has accrued at all. Its position, in substance, is that it never has been rejected. The statute provides that this 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." Code Civ. Pro. § 264. This claim is one founded upon express contract and is submitted by law to another officer or tribunal for audit. The Insanity Law, section 65, provides in part: "All payments on contract or special orders, shall be made on the certificate of the State Architect, approved by the Commission as the work progresses or the purchase of materials is made and upon bills duly certified." Consonant with these statutory provisions it is certain that this court has no jurisdiction of the claim unless it has been rejected previously by the appropriate officers. It is equally true that there has been at least one submission and rejection of all that part of the claim in excess of the sum of $721.66. This rejection was accomplished on or about July 3, 1912, when a purported final audit and determination of the claim was made by the state architect and the commission in the sum of $721.66, as full and final payment. That action, of course, involved a rejection of all claims and demands under the contract in excess of that sum. This audit and rejection, however, while sufficient as such to confer jurisdiction at that time upon this court, is of no avail to the claimant now Court of Claims, March, 1921. [Vol. 115. because the notice of intention was not filed until more than eighteen months thereafter. As we have pointed out, delay of that extent is fatal. Nevertheless, the fact remains that on or about July 3, 1912, there was an audit and rejection. But that was not all. It is evident that subsequently there was a resubmission of the claim in the sum of $1,588, to the state architect and the commission. It would seem to be immaterial whether this was due to the demand contained in the claimant's communication to the treasurer of the commission under date of July 3, 1913, to the initiative of the state, or to extraneous promptings. It is apparent that the proceedings taken on or about August 5, 1913, and August 7, 1913, amounted to resubmission and reaudit of the balance of the claim. It seems to us that the procedure taken did not amount to a rejection of the claim, but on the contrary, to an approval and allowance of it, payment not being made by the disbursing officer to the person entitled to receive the money. In short, it seems that the claim involved in this litigation has been audited and approved, but not paid. In any event, the claim, whether valid otherwise, or not, must be dismissed, because the notice of intention was not filed in time. It is possible that another judicial tribunal or the legislature may afford relief to the claimant, but it is certain that this court cannot. ACKERSON, P. J., concurs. Claim dismissed. Misc.] Court of Claims, March, 1921. VILLAGE OF SENECA FALLS, Claimant, v. STATE OF NEW YORK. Claim No. 15789. (State of New York, Court of Claims, March, 1921.) Canal Law, § 47 -the word ' person includes municipal cor poration jurisdiction of Court of Claims. The word "person " in section 47 of the Canal Law includes a municipal corporation. A claim under such provision of law made by the village of Seneca Falls for damages alleged to have been suffered by it by reason of the act, fault and negligence of the state, in the construction, maintenance and operation of the improved Cayuga and Seneca canal at Seneca Falls, whereby a large volume of water in a pool created by the state was precipitated in and upon the claimant's sewer system and sewage disposal plant, is properly a subject for adjudication by this court and the state's motion to dismiss will be denied. MOTION to dismiss claim. John H. Clogston, for motion. William S. McDonald, for claimant. WEBB, J. The claim is for damages alleged to have been suffered by the claimant by reason of the act, fault and negligence of the state of New York, in the construction, maintenance and operation of the improved Cayuga and Seneca canal at Seneca Falls, whereby a large volume of water in a pool created by the state was precipitated in and upon the claimant's sewer system and sewage disposal plant at Seneca Falls greatly damaging the same. The argument on the part of the state was based upon the decision of this court in the case of Town of |