The plaintiffs purchased the stamps in the ordinary course of business from the Comptroller, and attached them on the sale of stock according to their understanding of the law, and according to the strict letter of the law if the amendatory statute of 1906 had been within the constitutional power of the Legislature. But the taxing clause of that statute was unconstitutional, and, therefore, the claimants in relying upon it had erroneously fixed and canceled stamps to the amount claimed. They acted in entire good faith, and within the spirit of the statute are entitled to have the amount of said tax refunded.
The Comptroller sells the stamps, and by the provisions of section *873324 of the former Tax Law as added in 1905, which are similar to the provisions of section 279 of the present Tax Law, paid the proceeds into the State Treasury where they are applicable to the general fund “ and to the payment of all claims and demands which are a lawful charge thereon.”
By section 319 of the Tax Law, now section 274, the Comptroller is directed to make contracts for dies, plates, printing,-and for the manufacture of the stamps, and provide stationery and clerk hire, books and blanks for putting into operation the provisions of the statute, and all expenses so incurred by him are to be paid to him by the State Treasurer from any moneys appropriated for such purpose. By section 315 of the Tax Law, as amended in 1906, the refund therein provided is to be paid from appropriations made for such expenses. It is evident, therefore, that it is clearly the duty of the Comptroller to pass upon the plaintiff’s claim, ascertain and determine the amount thereof and certify to the same in proper manner so that it may be paid from any funds properly applicable to that purpose. We must assume that if the Legislature has not appropriated sufficient funds for that purpose it will perform such duty upon proper statement of the Comptroller that certain sums were due to claimants which could only be payable under the statute from such appropriations. The claim was never in fact presented to the Comptroller or rejected by him, and the appellants are at liberty to take such action before him as they may be advised.
It is clear that if the statute required this claim to be submitted to the Comptroller for determination, it is not a claim within the jurisdiction of the Court of Claims. Section 264 of the Code of Civil Procedure, conferring jurisdiction upon that court, provides : “ But the 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.” It is manifest that this claim does not rest upon express contract. It may be considered as a claim arising from the terms of the statute which imposes the tax and provides a remedy by which an innocent person erroneously paying too much may properly be reimbursed. I think, therefore, the Court of Claims had no juris*874diction, and that the Comptroller alone can grant relief. The judgment should be affirmed, with costs.
All concurred; Smith, P. J., in result on the ground that the Court of Claims had no jurisdiction.
The finding that the claim was rejected by the Comptroller is reversed as contrary to law and the evidence. Judgment affirmed, with costs.