Order affirmed, with costs. Memorandum: We concur in the view expressed in the memorandum opinion of the Court of *937Claims. (See post, p. 937.) If there were here an award, it would be the duty of the court to act favorably to the plaintiff under section 28 of the Court of Claims Act, but the basis of action fails in the absence of an award or proceeding under which an award can be made. The record discloses that the State has agreed to pay the owners for the appropriated land the sum of $775 and has not fulfilled its contract. The claimant, a mortgagee, should have a lien on this contract, or at least on the avails thereof and under an analogy to the requirements of section 28 of the Court of Claims Act the amount which the State promised to pay should be paid to the claimant. This, however, is not what was sought in the proceeding and it would seem to require an enabling act to permit the claimant to enforce this right against the State of New York. All concur, except Dowling, J., who dissents and votes for reversal on the law and for granting a new trial on the ground that the Court of Claims has jurisdiction under section 28 of the Court of Claims Act to order this fund deposited. (The order grants a motion to dismiss a claim against the State for appropriation of certain land.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.