Court of Claims, December, 1921.

[Vol. 117.

lessee-would be proper for consideration by the jury as throwing light on the good faith of the landlord as to his alleged intention, but should not as matter of law deprive the lessor of the benefit of the covenant.

The landlord's counsel endeavored to show the intention of the lessor at the time of the giving of the notice to make structural changes in the building; but the objections of the tenants' counsel to such evidence were sustained by the trial court over the appellant's exceptions, for the reason apparently that the subsequent lessee had agreed to make the alterations. This was error to the prejudice of the petitioner.

Final order reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event.

GUY and BIJUR, JJ., concur.

Order reversed.

LOUIS KAHN, Claimant, v. THE STATE OF NEW YORK.

Torts

Claim No. 16628.

(Court of Claims, December, 1921.)

claims against state Court of Claims — jurisdiction damages - prison inmate immunity of state from liability for torts of its agents is not relinquished by a statute waiving notice of claim-Laws of 1920, chap. 726.

Claimant, an inmate of Clinton prison, while at work in the weave shop was injured by being caught in a moving pulley on which he was attempting to adjust a belt under the direction of the person in charge. Held, that while by the statute (Laws of 1920, chap. 726) conferring jurisdiction only upon the Court of Claims to hear and determine the claim for damages, the state had clearly waived its immunity from suit and the

Misc.]

Court of Claims, December, 1921.

due filing of a notice of intention, this was not in and of itself sufficient to substantiate the claim in view of the expressed declaration of the statute that facts establishing liability on the part of the state must be proved as a condition precedent to the making of an award.

Claim dismissed for failure to state facts sufficient to constitute a cause of action.

MOTION to dismiss claim upon the ground that the claim does not state facts sufficient to constitute a cause of action.

Porter L. Merriman, deputy attorney-general, for the motion.

J. John Schulman (Louis Silberman, of counsel), for the claimant in opposition.

CORWIN, J. This claim is filed pursuant to chapter 726 of the Laws of 1920 and is for injuries suffered by the claimant while an inmate of the Clinton prison, alleged to be the result of the negligent acts of an agent and employee of the state and without contributory negligence on the part of the claimant.

That the state is immune from liability for injuries arising from the negligence of its officers and agents, in the absence of constitutional or legislative enactment assuming such liability, is well settled. Smith v. State of New York, 227 N. Y. 405; Lewis v. State of New York, 96 id. 71; Sipple v. State of New York, 99 id. 284.

It is urged in behalf of the claimant, however, that by the enabling act above referred to and which is pleaded in the claim, the state assumed liability. The language of the act, so far as is material, is as follows: "Jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the

Court of Claims, December, 1921.

[Vol. 117.

alleged claim of Louis Kahn against the State alleged to have been sustained by him by reason of the negligence of the State and its employees while confined in Clinton Prison on the fourteenth day of February, nineteen hundred and nineteen; and while at work in the weave shop in attempting to adjust a belt on a moving pulley under the direction of the person in charge, and being caught therein and permanently injured, causing the amputation of the left arm above the elbow; which such injury was caused solely by reason of the negligence of the State and its employees, and not through any contributory carelessness or negligence on the part of the claimant. The State hereby consents to have its liability in such claim determined, notwithstanding the failure of the claimant to file notice of intention to file such claim within the time limited by law therefor, provided the claim be filed with the court of claims within six months after this act takes effect. If facts establishing liability on the part of the State be proven to the satisfaction of the court, and the court deem it just and equitable that the claimant should be compensated by the State for such injuries it may determine the extent of such injuries and allow such claim in such sum as is deemed just and reasonable and render judgment therefor against the State."

By this act the state clearly waived its immunity from suit and waived the due filing of a notice of intention; but this is not in itself sufficient. "The immunity of the state from liability for the torts of its agents is based upon the broad ground of public policy and it is not waived by a statute conferring jurisdiction only. In the absence of a legislative enactment specifically waiving this immunity, the state cannot be subjected to a liability therefor." Smith v. State, supra. The state by the act in ques

Misc.] Surrogate's Court, Westchester County, December, 1921.

tion not only failed to assume liability under the facts stated, but expressly provided that facts establishing liability on the part of the state must be proved as a condition precedent to the making of an award.

To enable the claimant to recover, the legislature must in effect create a new cause of action in his favor based upon the facts recited in the statute. Litchfield v. Bond, 186 N. Y. 66, 83. That the legislature may do this without exceeding its constitutional limitations is indisputable. Munro v. State of New York, 223 N. Y. 208; Babcock v. State of New York, 190 App. Div. 147. That it has not done so seems equally clear. The claim must be dismissed.

ACKERSON, P. J., and SMITH, J., concur,

Claim dismissed.

In the Matter of the Transfer Tax upon the Estate of JOHN LYON, Deceased.

(Surrogate's Court, Westchester County, December, 1921.)

Transfer tax -evidence residence presumption in favor of an original as against an acquired domicile — burden of proof property of decedent as non-resident subject to tax-Tax Law, § 243, as amended by Laws of 1919, chap. 629.

By virtue of section 243 of the Tax Law (Laws of 1916, chap. 551, as amended by Laws of 1919, chap. 629), the burden of proof in a transfer tax proceeding is upon those claiming exemption by reason of the alleged non-residence of their decedent, which declares that "every person shall be deemed to have died a resident and not a non-resident of the state of New York if and when such person shall have dwelt

Surrogate's Court, Westchester County, December, 1921. [Vol. 117.

or shall have lodged in this state during and for the greater part of any period of twelve consecutive months in the twentyfour months next preceding his or her death."

Decedent, who was born at Greenwich in the state of Connecticut in 1839, died in the month of July, 1920, at Port Chester, New York, where he had continuously resided with his family since January, 1900, having acquired real estate there by inheritance. He never resided elsewhere than at either of these two places, both of which are not far distant from the boundary line dividing the states of Connecticut and New York. He was made a freeman in Greenwich in 1861 and continued to exercise his communal relations in Connecticut until 1913, always attending and taking part in the town meetings. He never voted elsewhere and in more than four hundred deeds, mortgages and other papers recorded in Greenwich, in Westchester county and Kings county, N. Y., he was always mentioned and described as a resident of Greenwich and he declined to receive or execute papers in which he was otherwise described, and furthermore he protested his assessments in Port Chester. No attempt was made by the state tax commission, in a transfer tax proceeding, to controvert these facts, established by the executor. Held, that the burden laid upon the executor by the statute has been met by evidence abundant and convincing, indicating an undeviating determination on the part of decedent not to abandon his domicile of origin in the state of Connecticut, either in law or fact, and that domicile must govern in the administration of his estate.

A contention on behalf of the state tax commission that a residence of years in another state in conjugal relationship supplies the intent to change a person's domicile and in fact creates a new domicile of choice for him without the operation of his mind, is untenable under the decision in Dupuy v. Wurtz, 53 N. Y. 556-561.

The transfer tax proceeding remitted to the transfer tax appraiser in Westchester county, N. Y., to appraise the property of the decedent therein, as a non-resident under the provisions of section 243 of the Tax Law in force at the time of decedent's death.

TRANSFER tax proceedings.