The Comptroller appeals from the determination of the Albany Special Term directing a mandamus requiring him to audit the relator’s claim and deliver him a warrant for *582$50,131.70. The relator had a contract on the canal which he was to perform at a uniform price for digging. A part of the digging was rock excavation which was more expensive than the dirt excavation. He entered upon the contract in good faith and performed it faithfully until the State, pursuant to its right so to do, as stipulated in the contract, altered the contract and directed discontinuance of part of the work to be done thereunder. This was accomplished by a resolution of the Canal Board passed on the 27th day of December, 1911. After the alteration of thé contract and the discontinuance of this work/ an account was stated by the relator of the amount of work done under said contract. This account was approved by resolution of the Canal Board upon January 31,1912. Thereafter, upon the certificate of the engineer that the work was performed, the Superintendent of Public Works issued a warrant upon the Comptroller for the payment of the sum in question, being the amount remaining unpaid upon the account stated by the relator and approved by the Canal Board January thirty-first. The Comptroller refused to pay the amount of this warrant, and an order thereafter was granted, directed to the Comptroller requiring him to show cause why payment of the warrant should not be made. After the order to show cause was granted and before the hearing, upon March 20, 1912, the Canal Board, pursuant to a request from the Comptroller, assumed to rescind the resolution altering the contract, dated December 27, 1911, and also the resolution approving the account of the relator, dated January 31, 1912, and in. that resolution it was provided that the matter be referred to the State Engineer and Surveyor to furnish to the Canal Board at its next meeting a full and detailed statement with reference to the subject-matter of tho contract.
It thus appears that by the order appealed from the Comptroller has been directed to pay the account of a contractor while the alteration of the' contract upon which the account was stated and the acceptance and approval of the account stand disapproved by the Canal Board. The only justification for this order would seem to be that the Canal Board was without authority to rescind its resolution altering the contract and approving this account. But such authority must, from the *583nature of the case, be presumed. There are many contracts which the Canal Board is called upon to approve, which, upon subsequent investigation, prove to be improvident, and it would be a serious embarrassment to the usefulness of the Board if' power to modify and rescind such approval were held to be wanting. Moreover, by subdivision 7 of section 15 of the Canal Law (Consol. Laws, chap. 5; Laws of 1909, chap. 13) the Boardis given express powerto open any adjudication “when in their judgment justice may require it,” and to order a rehearing therein.
Without considering, therefore, the rights of the relator as against the State, this court should not issue its writ of mandamus to compel the Comptroller to pay a claim which stands disapproved by the Canal Board, upon the approval of which Board only is the Comptroller given power to make payment.
The order should, therefore, be reversed, without costs, and the motion for a writ of mandamus denied.
All concurred, Betts, J., in memorandum.