I agree with claimant that the State’s setoff was improperly interposed and the Court of Claims was without jurisdiction to hear it. That court possesses jurisdiction to hear and determine “ claims * * * by the state against claimant * * * as the legislature may provide ’ ’ (N. Y. Const., art. VI, § 9). However, the Legislature has not elaborated upon that provision beyond reiterating the authority of that court to resolve “ any claim in favor of the state against the claimant” (Court of Claims Act, § 9, subd. 3). Although it' seems well settled that, as a condition to being sued, the State may validly interpose a counterclaim against a claimant in that forum arising out of the same or similar transactions with an identity of factual issues to be resolved (Valentino v. State of New York, 44 A D 2d 338; Gross & Son v. State of New York, 214 App. Div. 386, mod. 243 N. Y. 629), I cannot accept the State’s interpretation of “ claim ” so as to include the particular setoff asserted by it in this action, nor its argument that under modern practice counterclaims include both recoupments and setoffs without distinction (see 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3019.01, 3019.02, 3019.03).
*405Williams Press has the right to have the State’s claim against it determined by a court of general ¡jurisdiction to preserve its right to a trial of the issues by jury and to present any equitable defenses it may possess to defeat that claim. The implicit Waiver of such rights as a condition to suing the State in a court of limited jurisdiction should not be further broadened so as to permit the. State to maintain its setoff on matters wholly separate and unrelated to claimant’s underlying 1971 contract action. There can be no similarity of issues to be resolved so as to justify the interposition of the type of setoff asserted in this case for the very simple reason that there never was a dispute concerning the State’s liability under that 1971 agreement. The related nature of prior dealings between these parties should not be permitted to mask the inherently separate identity of the Williams Press claim. Attempts to settle accounts with a vendor by offsetting prior unrelated overpayments against sums currently due are understandable; the vendor might agree to such action and avoid litigation. However, it would be constitutionally offensive to allow the .State to carry that attempt to the point of effectively forcing a vendor to choose between accepting that offset or maintaining an action for sums concededly due in a forum without the benefit of a jury or equity which would otherwise have been available if the State had commenced action on its claim in a court of general jurisdiction. A contractor with the State knows and expects that, should a dispute not be settled, its claim and any recoupment alleged by the ¡State can only be judicially resolved by the Court of Claims under its practice. What such a party should not expect is that prior unrelated matters, never previously disputed or contested in a court of general jurisdiction, might some day be resurrected by the State in opposition to its present just claim. The establishment of such a dangerous precedent would expose those who deal with the State to countless unanticipated pitfalls. I do not mean to suggest that the State is estopped from recovering illegal or unauthorized payments after audit (cf. People v. Journal Co., 213 N. Y. 1) or that the State must always pay over all money due before suing for disputed amounts owed to it (cf. Capitol Distrs. Corp. v. Kent’s Best., 173 Misc. 827). Bather, the State should not be permitted to neglect or abandon its previously available remedies until such time as it unilaterally decides to frustrate payment of a valid claim. United States v. Munsey Trust Co. (332 U. S. 234) is not to the contrary because it was clear in that case that the Federal statutes specifically empowered District Courts to determine all “ setoffs ” *406by the government against its claimants. Here the statutory framework is not so clear and I simply decline to interpret a “ claim ” to include the type of setoff maintained by the State in this case which it could, and still may, assert in a court of general jurisdiction. In my view, the situation presented is somewhat similar to Horoch v. State of New York (286 App. Div. 303) which refused to allow the State to implead a third-party defendant in a Court of Claims action. Williams Press obviously stands more in the position of such a third-party defendant as td the overcharges alleged for the 1965 through 1970 period than as a claimant against whom the State seeks to maintain a true counterclaim under the 1971 contract.
Even if such a defensive setoff as asserted in this case had been properly interposed, we would be compelled to reverse the determination favoring the State on factual grounds. Nowhere did. the State adduce proof supporting the computations or total amounts of such alleged overpayments.
I would grant judgment to the claimant in the sum of $87,807.53, together with appropriate interest, leaving to the State its existing remedies in a court of competent jurisdiction.