Lackawanna Steel Construction Corp. v. State

152 Misc. 604, 273 N.Y.S. 895, 1934 N.Y. Misc. LEXIS 1580

Opinions

Ryan, J.

Claimant's contract with the State's defaulting contractor Anderson provided as follows: “ We offer to furnish all material and perform all labor required to manufacture and erect complete on your foundation, structural steel and metal railing required on N. Y. Highway contract C. H. 8428.”

Under the State’s contract and specifications the Department of Public Works knew or should have known of the provisions of this subcontract. When the Department authorized and the Comptroller approved the payment to Anderson under the final estimate of February 20, 1933, the State proceeded at its own peril. The materials had been consiged to claimant by itself, received at destination by itself, and delivered on the site by itself to be in readiness to comply with the terms of its subcontract, i. e., erect the material complete on the general contractor’s foundation.

Claimant never parted with title nor possession. The act of the State’s officers and employees in delivering over the materials to the new contractor on the reletting was conversion. This was not a negligent nor careless but a willful act. The defense argues that no carelessess nor negligence has been shown. The provisions of section 12-a of the Court of Claims Act are much broader than this. “ The State hereby waives its immunity from liability for the torts of its officers and employees * * * jurisdiction is hereby conferred * * * to recover damages for injuries to property * * * caused by the misfeasance * * * of the officers or employees.”

Conversion is a tort. The doing of it herein was misfeasance.

It appears that the property was taken on the advice of the Attorney-General. That does not relieve the State from liability. An award should be made for the full amount demanded, with interest from August 29, 1933.

Ackerson, J., concurs; Barrett, P. J., dissents.