People Ex Rel. Palmer v. . Travis

Cuddeback, J. (dissenting).

I dissent. The state comptroller is called upon in this proceeding to pay out of the public funds about $1,000,000, the amount of a

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judgment against the state, rendered in the Court of Claims. I think we ought not to say that the comptroller had no right to require the relator to comply with certain statutory regulations applicable to the case before he would pay the judgment— especially as the statutory regulations are simple and easily complied with. . Section 269 of the Code of Civil Procedure provides that “ no such judgment shall be paid until there shall be filed with the comptroller *- * * a certificate of the attorney-general .that no appeal from such judgment has been or will be taken by the state.” The relator presented no such certificate. It is argued that the section does not apply because there has been "an appeal to this court from the judgment of the Court of Claims, and no further appeal lies. How does the comptroller know that? The certificate is his .only authority for paying out the money. If he should not follow the law and a loss should ensue, the court would be very quick to hold him personally responsible for the loss. It is said that the attorney-general may refuse the certificate. If he should refuse it, a very different case would be presented from what we , have here. It is said the giving of a certificate in this case would be a useless formality, but the observance of formalities is sometimes necessary to protect substantial rights.

(Utica S. M. Co.

v.

Casualty Co. of America,

210 N. Y. 399, 404 .) I think the comptroller should not be coerced in this matter.

His cock, Ch. J., Collin, Hogan and Cardozo, JJ., concur with Andrews, J.; Cuddeback, J., reads dissenting memorandum; Pound, J., dissents.

Order reversed, etc.