(concurring in result). This application for leave to institute suit to enjoin payment of certain moneys is grounded upon the provisions of section 1 of article Y of the New York Constitution and section 111 of the State Finance Law. These sections prohibit the payment of State moneys or moneys in the custody or under the control of the State without audit by the Comptroller. If the prohibition is not observed, upon application and notice to the Attorney-General, the Appellate Division may authorize a taxpayer to institute suit to enjoin the violation.
The language of the statute is contemplative; it envisages a restraint on further or future action. Precedent to granting leave there must be at least a finding or determination that the funds, prima facie, are within the categories specified. The extent of the power vested in the taxpayer, if leave be granted, is by court action to enjoin or prevent further payment. There is neither constitutional nor statutory right in the individual to demand recovery of moneys already paid out.
The decision in the companion case (Matter of Roosevelt Raceway v. Monaghan, 11 A D 2d 206) is being handed down herewith. Since the law in this case as declared by the majority is that these are not public funds (a conclusion with which I do not agree), a dissent would be an idle gesture. Moreover, if leave were granted, and the efforts of the applicant were crowned with success, audit would be required only as a condition precedent to payment. That is, of course, if the objective were lawful and proper. Roosevelt Raceway, Inc., without conceding these are public funds, has expressed a willingness and consent to audit. I concur, therefore, only in the result, not in *206the holding of the majority that the funds in the construction account are not State funds.
Botein, P. J., Babin, Valente, McNally and Stevens, JJ., concur in denial of application; Babin, J., concurs in opinion by Botein, P. J.; Valente and Stevens, JJ., concur in result in opinion by Stevens, J.; McNally, J., concurs in result only.
Application pursuant to section 111 of the Finance Law for permission to commence and maintain a taxpayer’s action for an injunction against Roosevelt Raceway, Inc., and any other harness racing tracks which may have diverted certain revenues of the State of New York, and the State Harness Racing Commission, denied without costs..