(dissenting). The Court of Claims dismissed the claim of Cathedral Academy solely on the ground that chapter 996 was violative of the Establishment Clause of the First Amendment and was, therefore, void. It is from that decision that this appeal has been brought.
The appellant contends that the Court of Claims misapprehended both the purpose and effect of chapter 996 and that rather it provides a constitutionally valid means to reimburse qualifying nonpublic schools for the second semester of the 1971-1972 academic year.
The majority opinion amply sets forth the background of this proceeding and I agree with its conclusion that the basis for the finding of unconstitutionality in regard to the Mandated Services Act in Levitt v Committee for Public Educ. (413 US 472) (hereinafter referred to as Levitt) was different from the finding in the case of Lemon v Kurtzman (403 US 602 [Lemon I]). Nevertheless, the conclusion of the majority that the difference in the particular reason which required a declaration that the legislative enactment was unconstitutional would result in the one-time payment provided for in chapter 996 of the Laws of 1972 being different in nature or quality from that permitted in Lemon v Kurtzman (411 US 192 [Lemon II]) is not well founded.
Pursuant to chapter 996 of the Laws of 1972, there is to be a postaudit to determine whether or not the mandated services had in fact been performed by the claimant.* While it is true that in Lemon II there had presumably been active supervision of the affairs of the school so as to insure that the acts for which reimbursement was to be made were not at *397least directly for religious purposes, the postaudit, which in this case is to be performed by the Court of Claims, will necessarily establish whether or not the amounts claimed for mandated services constitute a furtherance of the religious purposes of the claimant. To be sure, there will be an indirect furtherance of the religious purposes of the claimant Academy insofar as the costs of the mandated services required budgetary allowances away from the religious purposes of the claimant. However, that would be no more true in the present case than it was in the Lemon cases. The fact of an implicit furtherance by any State assistance or aid to sectarian schools whether on a one-time basis or on a continuing basis was recognized in the majority opinion in Lemon II {see 411 US, at p 202). As in the case of Lemon II, the single proposed payment for services rendered during the period of the presumed constitutionality of the former Mandated Services Act reflects no more than the school’s reliance upon the promise of payment for their continuance to exist as institutions of education and providing a level of education required by the State. Indeed, the majority recognize that in Lemon II "a constitutional interest arising from the payments was assumed for the purpose of discussion” and yet would undermine the constitutional sanctioning of a one-time payment where there had been reliance upon a presumably constitutional enactment. The failings of the Mandated Services Act and the enactments of Pennsylvania and Rhode Island, while distinguishable for purposes of understanding what will not be permitted in regard to State enactments which provide aid to religious institutions, have no immediately perceivable impact upon the consideration of whether or not a subsequent payment may be made for reliance where the statutes brought under constitutional attack are not upon their face patently an abridgement of the Constitution. The Legislature recognized a moral obligation to reimburse the schools for moneys already budgeted and expended.
In Lemon /the court was confronted with substantially the same situation that existed in the Levitt action. The court in Lemon /observed (403 US 602, 623, supra): "Here [Lemon]we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified.”
The present action involving chapter 996 of the Laws of *3981972 is more analogous with Lemon II, it being a "one shot” payment for services already performed.
In regard to Lemon II, the appellant states that as for the constitutional interests the court, after noting that the constitutional fulcrum of Lemon / was the excessive entanglement of church and State, observed that the one-time payment of $24,000,000 to nonpublic schools will not substantially undermine the constitutional interests at stake in Lemon I. The court also noted two problems having constitutional overtones but held that they were minimal or outweighed by reliance considerations.
The court held that the equities of the reliance by the nonpublic schools on the expectation of reimbursement outweighed the constitutional "interests”.
In the present case the Court of Claims found (p 983) that permitting the implementation of chapter 996 of the Laws of 1972 "would have the effect of resurrecting chapter 138 [of the Laws of 1970] which the Supreme Court declared unconstitutional.” It reasonably appears that the actual effect of chapter 996 of the Laws of 1972 is to close out the former Mandated Services Act and recognize its unconstitutionality instead of attempting to resurrect the same. In any event, Mandated Services Act (L. 1970, ch. 138) and chapter 996 of the Laws of 1972 are readily distinguishable.
At this posture of the litigation we should be guided by the action of the court in Lemon II.
The State, in addition to its argument of Federal unconstitutionality, also contends that the payment of the claim herein would constitute a gift of State money to a private corporation in violation of section 8 of article VII of the New York Constitution or an audit by the Legislature of a private claim in violation of section 19 of article III of the New York Constitution.
It is well settled that the Legislature can direct the payment of claims founded in equity and justice, even though the claim itself would not be enforceable in a court of law (Oswego & Syracuse R.R. Co. v State of New York, 226 NY 351; Lehigh Val. R.R. Co. v Canal B., 204 NY 471). In order to justify the Legislature in recognizing a claim against the State based upon a moral obligation or founded on conceptions of equity and justice, there must be present an obligation which would be recognized by men with a keen sense of honor and a real desire to act fairly and equitably without compulsion of law *399(Ausable Chasm Co. v State of New York, 266 NY 326). In the present case, the sole reason why the claimant did not receive payment for the second semester of the 1971-1972 school year was the fortuitous circumstance that the declaration of unconstitutionality by the courts came before the date set for the payment of the second installment but after the rendering of by far the greater part of the services required. Thus, the great bulk of the mandated services which the claimant was expected to perform and for which, in turn, the claimant expected compensation had already been rendered prior to the issuance of the permanent injunction on June 1, 1972. Consequently, the equitable considerations present in Lemon II are, if anything, heightened. In the course of its decision in Hecht Co. v Bowles (321 US 321, 329) the Supreme Court addressed itself to these considerations and held that "flexibility rather than rigidity has distinguished [them]. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs.”
Sections 1 and 2 of chapter 996 of the Laws of 1972 amply spell out a basis which would justify recognition of the instant claim as a moral obligation and/or founded on concepts of equity and justice.
The purpose of section 19 of article III of the New York Constitution was "to remedy the manifest evils of special legislation in the interest of private claimants” (Board of Supervisors of County of Cayuga v State of New York, 153 NY 279, 288). It is readily apparent that chapter 996 is not designed to provide a recovery for any single institution and is applicable to a class which cannot readily be classified as constituting a private special interest. Accordingly, this contention of the Attorney-General is without any particular merit.
Upon approaching chapter 996 it must be remembered that it is supported by a presumption of constitutionality which is not easily overcome. In addition to the presumption, it appears that this one-time payment falls within the realm of that which is constitutionally permissible pursuant to the decision of the Supreme Court in Lemon II (supra).
However, it is readily apparent that it was never the intent of the Legislature that any of its funds were to be allowed for the furtherance of religious purposes. In this regard, the audit of the claims by the Court of Claims must serve the same *400purpose as the final post audit which was referred to in Lemon II (supra). Accordingly, the burden will be upon the claimant to prove that the items of its claim are in fact solely for mandated services and the burden will be upon the Court of Claims to make appropriate findings in regard thereto.
This dissent may be concluded by observing that in Lemon II the court noted that the application of familiar equitable principles must be measured against the totality of circumstances and in the light of the general principle that, absent contrary direction, State officials and those with whom they deal are entitled to rely on a presumptively valid State statute, enacted in good faith and by no means plainly unlawful.
The judgment of the Court of Claims should be reversed and the claim reinstated.
The statute conferred jurisdiction on the Court of Claims to "hear, audit and determine” claims of eligible nonpublic schools. In Levitt there apparently was a tacit understanding that $27 per pupil would be paid for grades 1 through 6 and $45 per pupil for grades 1 through 12.