This claim is for damages for breach of a written contract of lease for a portion of premises owned by the claimant in New York city. In June, 1919, the Trustees of Public Buildings of the State entered into such lease with the claimant for a term of one year and seven months to commence on the 1st of July, 1919, and to terminate the 1st of February, 1921, at an annual rental of $16,500, payable in monthly installments of $1,375 on the first day of each and every month in advance.
The premises were leased by the Trustees of Public Buildings for the State Industrial Commission, which Commission entered said premises under the lease and occupied the same up to and including the 30th of April, 1920, for which period the rent was duly paid. On the 30th of April, 1920, the State Industrial Commission vacated said premises. For the balance of the period of the lease from that date the rent was not paid. It is stipulated that the claimant forwarded to the State Industrial Commission each month during the balance of the term of the lease, including the month of January, 1921, a bill for the rent due for that month in the usual form provided by the State Industrial Commission. The procedure for the collection of the rent was for the claimant to execute and verify such a voucher and on the receipt of a requisition from the State Industrial Commission with such a voucher a warrant was issued by the Comptroller. In March, 1920, the State Industrial Commissioner wrote to the claimant informing it that the State had made provision for the purchase of a building which would be in condition for occupancy by the 1st of May, 1920, and requesting the claimant to release the State from further obligations under the lease. This the claimant could not consent to and so notified the State Industrial Commissioner, whereupon said Commissioner notified claimant that the Commission intended to vacate the premises on April 30, 1920, which it did. The claimant made efforts to secure a new tenant for the balance of the period, which efforts were unavailing, and the premises remained vacant during the balance of the term. The claimant made no other effort to collect the rent than by the presentation of its monthly bills to the State Industrial Commissioner, until March 16, 1921, when a representative of the claimant personally appeared before the Comptroller and presented a claim for the full amount of the balance of the rent due. The Deputy Comptroller stated that the Comptroller had no jurisdiction in the matter and that the claimant should file its claim with the Trustees of Public Buildings; that it should see Mr. Parsons, the executive auditor, who represented the Trustees of Public *735Buildings. The claim was not left with the Comptroller but on the 17th of March, 1921, was presented to the executive auditor. Such Trustees of Public Buildings having failed to authorize the allowance of said claim, this action was brought in the Court of Claims. No further effort was made to require the Comptroller to audit the same.
The Court of Claims has held that it has no jurisdiction of the claim by reason of the fact that the claim is founded upon express contract and that such claim was not rejected by the Comptroller, who was the officer to whom such a claim must be submitted for audit or determination. (Code Civ. Proc. § 264; Court of Claims Act, § 12; State Finance Law, § 4.) The Court of Claims also held that, assuming the absence of such a jurisdictional defect, the claim was largely barred by the six months’ Statute of Limitations. (118 Misc. Rep. 605.)
The Code of Civil Procedure (§ 264; Court of Claims Act, § 12) provides as follows: “ But the Court [of Claims] 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.” This is one of the claims required to be audited by the Comptroller under the general provision of the State Finance Law (§4), since ho other officer has been appointed by the Legislature to audit this specific claim or to order its payment as in the case of Nellis v. State of New York (204 App. Div. 176), decided by this court at the last term. That question was not expressly decided by this court in the latter case but it was passed upon by the Court of Claims as shown by the opinion of Corwin, J. (Nellis v. State of New York, 118 Misc. Rep. 612). In that case it appeared that by chapter 340 of the Laws of 1921, not applicable to the case at bar, it was provided that “ the sum hereby appropriated shall be paid out by the Treasurer on the warrant of the Comptroller on the order of the Industrial Commissioner.” That statute was passed subsequent to the period of the lease in question here. The provision of that statute above quoted was interpreted as requiring an audit in the first instancé by the Industrial Commissioner. Whether that was so or not, no such provision of the statute was applicable to the facts of this case and the general rule of audit set forth in section 4 of the State Finance Law, requiring an audit by the Comptroller, appears to be the only applicable statute.
It was the duty of the Comptroller to audit in this case and the Court of Claims had no jurisdiction of the claim unless the same had been rejected by the Comptroller. The Comptroller *736did not actually reject the claim. “ To audit is to hear, to examine an account, and in its broader sense it includes its adjustment or allowance, disallowance or rejection.” (People ex rel. McCabe v. Matthies, 179 N. Y. 242, 247.)
The Comptroller did not reject the claim. He denied jurisdiction. He expressly refused to act as auditor. He refused to approve or disapprove. In this he was in error. If it was his duty to act and he refused to do so the remedy was to compel him to act by mandamus. The Comptroller was in error in thinldng that there was a condition precedent to his acting which had not been complied with. His sole act was not an audit at all but a refusal to audit because the claim had not been passed upon by the Trustees of Public Buildings. There is nothing in the statute which required the Trustees of Public Buildings or the State Industrial Commissioner to order the payment of the claim as a condition precedent to auditing of the same by the Comptroller.
The claim being founded upon express contract and not having been rejected by the Comptroller, the Court of Claims had no jurisdiction and the claim was properly dismissed upon that ground. (O’Neil v. State of New York, 223 N. Y. 40, 43.) This leaves it unnecessary to consider the other question. It would seem from the testimony that .appropriations were available at the time to meet the State’s obligation under the terms of this lease. If so, the obligation of the State under the lease became absolute. (Nellis v. State of New York, supra.)
We do not assume to decide the question of the State’s liability upon the merits. We simply hold that the claimant had misconceived its remedy, which was to compel the Comptroller. to entertain its application for audit by mandamus if necessary. The predicament of the claimant seems to rest upon the mistake of law that the Comptroller had no jurisdiction to audit, which was error.
Our decision is without prejudice to the right of the claimant to present its claim to the Comptroller for his audit and determination. While the appropriations have lapsed whereby mon§ys may have been available for the payment of these rents (H. Y. Const, art. 3, § 21), another appropriation may be made available to meet this claim, if upon the audit and determination of the Comptroller it is found to be a valid obligation of the State.
The judgment of the Court of Claims should be affirmed and the claim dismissed.
H. T. Kellogg, Acting P. J., Kiley and Van Kirk, JJ., concur; Hasbroitck, J., dissents, with an opinion.