This claim was filed to recover $50,215 for the death of claimants’ intestate, August 9, 1936, alleged to have been caused by reason of the negligence of the State, its officers, agents or employees.
Jack Goldstein, the deceased, was twenty-eight years of age, unmarried and lived with his parents, four brothers and sisters, in the County of Bronx, New York. At the time of his death he was, and had been for five years prior to that, a member of the 105th Field Artillery, National Guard of New York State.
*338On August 9, 1936, by order of his superior officers, he was directed to proceed from the Armory in the Bronx, to Pine Camp at Watertown, New York, by a designated military truck, No. 105-F.A.-12, which was owned by the Federal Government and under the control of and operated by said 105th Field Artillery of New York State. This was a part of a convoy of about forty trucks. Ten members of said National Guard were assigned to each truck, a chauffeur, a corporal, and eight men. Jack Goldstein was one of the eight men in the rear of the truck. The chauffeur, Seymour Thai, and corporal Stark were in the driver’s seat.
The accident occurred at Catskill, New York, about 1:30 p. m. by reason of the said truck’s striking the iron superstructure of a bridge, which precipitated it down an embankment of twenty-two feet onto a railroad track, demolishing the truck and causing injuries to claimants’ intestate from which he died that night.
At the opening of the trial, the State moved to dismiss the claim on two grounds:
First — that the claim as served being for more than five hundred dollars, was typewritten instead of printed, in violation of the rules of the Court; and
Second — that the claim does not state facts sufficient to constitute a cause of action; that there were only two remedies open to claimant and which were exclusive.
(a) Under the Military Law of the State.
(b) Under the Workmen’s Compensation Law.
Decision on this motion was reserved at that time; at the close of the claimants’ case the motion was renewed and decision reserved. Disposition of this motion must now be made prior to the consideration of the claim on the merits.
The printing of claims above five hundred dollars is required by rule eleven of the Court of Claims Act; this rule was established for the convenience of the court and other State officers and employees upon whom devolves the duty of the investigation and disposition of the claims.
The rules of the Court are procedural and not jurisdictional and may be, and at times are, waived, when sufficient reasons appear for such action.
In the present action, the claim was subsequently printed and by nunc pro tunc order filed and served in the place of those which were typewritten.
In all previous claims which have been brought to our attention, in which the claimant was a member of a State military organization, or National Guard, the claimant had a special act of the Legislature, commonly called an Enabling Act, permitting the *339filing of the claim, which fact vitally distinguishes those cases from the instant claim, in which there is no Enabling Act. (Lewis v. State [1921], 197 App. Div. 712; affd., 234 N. Y. 587; Schmohl v. State [1931], 141 Misc. 274, 275; Dicicco v. State [1934], 152 id. 541; Spence v. State [1936], 159 id. 797).
In the Lewis Case (supra), recovery was denied because of contributory negligence of claimant, and that his acts were outside the provisions of the Enabling Act. The Court, however, stated: “ If the claimant had been injured in this case while performing a military duty, and without any fault on his part, very probably the case would fall under section 220 of the Military Law, which gives a pension.”
In discussing the Schmohl Case (supra), the court said: “ The so-called remedy under the Military Law (§§ 220, 223) is nowise exclusive. In this respect it differs from the Workmen’s Compensation Law. Chapter 615 of the Laws of 1922, as amended (§ 11), makes the remedy therein exclusive. (See Shanahan v. Monarch Engineering Co., 219 N. Y. 469.)
“ In the case at bar two remedies are provided, to wit, sections 220 and 223 of the Military Law and chapter 818 of the Laws of 1930. (The Enabling Act.)
“ The claimant has elected to pursue the latter remedy, which he has a right to do, as the Legislature has given him this right by the passage of chapter 818 of the Laws of 1930.”
The claim at bar, as presented by both sides, rests entirely upon the theory that claimants’ intestate was an employee of the State of New York. (Dicicco and Spence Cases, supra.) These two cases also reaffirm the Schmohl and Lewis decisions.
In each of the above cases, the claimant chose to present his claim under the Enabling Act, secured for that particular purpose, disregarding by that choice any other remedy under any other law which he may have had. The case of Schwartz v. State, 277 N. Y. 567, was a claim filed in the Court of Claims by the Administrator of a canal employee of the State of New York, without an Enabling Act; the Court of Claims made an award (161 Misc. 751); which was reversed (251 App. Div. 634); and the Appellate Division was affirmed by the Court of Appeals — Bliss, J., stated (251 App. Div. p. 636):
“ All employees of the State are brought within the provisions of the Workmen’s Compensation Law by group 16 of subdivision 1 of section 3 of that law.” Said group 16 reads as follows:
“ Any employment by the state, notwithstanding the definitions of the terms ‘ employment,’ ‘ employer ’ or ‘ employee ’ in subdivisions three, four and five of section two of this chapter,” shall receive compensation for injuries or death.
*340These sections are all inclusive, and in the absence of a special act by the Legislature, compel a member of the State National Guard to seek his remedy under the Military Law or the Workmen’s Compensation Law, for any injury received in the line of duty in the military service of the State.
Counsel for claimants argues that section 12-a, supplemented by section 15, of the Court of Claims Act amounts in substance to a special or enabling act sufficient to give the Court of Claims jurisdiction of the instant action in the event that an enabling act should be deemed to be necessary; we are not in agreement with that interpretation of these acts.
In 1929 the Legislature added section 12-a to the Court of Claims Act, thereby widening the jurisdiction of the Court of Claims:
“ The state hereby waives its immunity from liability for the torts of its officers and employees and consents to have its liability for such torts determined in accordance with the same rules of law as apply to an action in the supreme court against an individual or a corporation, and the state hereby assumes liability for such acts, and jurisdiction is hereby conferred upon the court of claims to hear and determine all claims against the state to recover damages for injuries to property or for personal injury caused by the misfeasance or negligence of the officers or employees of the state while acting as such officer or employee. Such claim must be submitted pursuant to the procedural provisions of the court of claims act. Nothing herein contained shall he construed so as to affect, alter or repeal any provision of the workmen’s compensation law.” (Italics are mine.)
Group 16 of the Compensation Law above quoted became effective in 1924, or five years prior to the enactment of section 12-a, which specifically exempts from section 12-a “ any provision of the Workmen’s Compensation Law.”
These sections then, when read together, lead to the conclusion that section 12-a provides that only those who are not employees of the State of New York may present their claims to the Court of Claims, without enabling acts.
The Court of Claims is a court of limited jurisdiction and obtains its right to act on any claims directly from the Legislature. Such laws conferring jurisdiction must be strictly construed and cannot be enlarged by interpretation by the Court itself.
Subdivision 5 of section 15 of the Court of Claims Act, added by the Laws of 1936, recites among other things that:
“ A claimant who fails to file a claim or notice of intention * * * may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the *341accrual thereof, or in the case of a claim for wrongful death within two years after decedent’s death.”
The balance of said subdivision 5 relates to the procedure by which the court may relieve the default in the time of filing of a claim, and that is the extent of its power. (Schroeder v. State, 252 App. Div. 16.) Subdivision 5 of section 15 does not add to the jurisdiction of the court any claims of a different character or by a different class of persons than it already had before the enactment of that provision. This claim must be dismissed for lack of jurisdiction.
The State’s Motion to dismiss the claim herein on the law is hereby granted.
It is so ordered.
Ackerson, J., concurs in result; Ryan, J., dissents.
Fred M. Ackerson, official referee, acting as judge (concurring in result).
I agree with my associate Judge Gibbs that the motion made by the Attorney-General to dismiss this claim must be granted.
I believe, however, that this court is deprived of jurisdiction to hear and determine this claim because the matter involved has been submitted by law to another tribunal or officer for audit or determination and the claim is not one founded upon an express contract.
Section 220 of the Military Law as it existed at the date of the injury and death of claimants’ intestate read as follows: “Every member of the active militia who shall be wounded or disabled * * * in the performance of any actual service of this state * * * while engaged in any lawfully ordered parade, drill, encampment or inspection, shall, upon proof of the fact, as hereafter provided, be placed on the roll of invalid pensioners of the state, and shall receive, out of any moneys in the treasury of the state, not otherwise appropriated, upon the audit of the adjutant-general of the state and approval of the governor, the like pension or reward that persons under similar circumstances receive from the United States, and in case of any wound, injury or disease so received or contracted causing death within one year thereafter, then the widow, minor children or dependent mother of such member of the militia shall receive such pension and reward as persons under similar circumstances receive from the United States, provided, that application is made therefor within one year after the date of such death.”
I have quoted such part of the section as is applicable to this case.
*342It will be seen, therefore, that here is a specific act of the Legislature providing for the compensation to be made by the State to those members of the militia who are wounded or to the dependents of those who die from wounds received while in the active military service of the State as was these claimants’ intestate.
When the Legislature conferred jurisdiction upon the Court of Claims to hear and determine claims against the State by section 264 of the Code of Civil Procedure and thereafter readopted it with some amendments as section 12 of the Court of Claims Act, it specifically stated that the court has no jurisdiction of certain claims which it therein described in the following language: “ But the court 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.” The Military Law provides, as appears from the section quoted above, that the mother of this decedent was entitled to present her claim for the “ pension and reward ” provided for in such cases for audit to the Adjutant-General of the State, and after his audit had been approved by the Governor, the mother would receive from the State Treasury the “ pension and reward ” provided for by law in such cases.
„ It seems plain, therefore, that the act conferring jurisdiction upon the Court of Claims has in clear and unmistakable language excepted from that jurisdiction such claims as the one before us here. Compensation for wounds, injuries, and death incurred in the active military service of the State, in which this decedent was engaged at the time of his death, was at all the times herein mentioned specifically provided for by the Military Law of the State.
This exception to the jurisdiction of the Court of Claims was first commented on by a judge of this court, I believe, in the case of McAuliffe v. State (107 Misc. 663).
McAuliffe was a militiaman in the State service. Pursuant to an order of his superior officer he was vaccinated with vaccine which was impure and dangerous to life and which was improperly administered. Thereafter he became sick and died as a result of such vaccination.
Thereafter his administratrix filed a claim against the State demanding damage for his death caused by the negligence of the agents of the State.
The State thereupon made a motion to dismiss the claim on the grounds:
1. That the State was not liable for the torts of its agents and servants unless it has accepted such liability.
*343Of course, this was long before section 12-a was enacted and without an enabling act the Court of Claims did not have any jurisdiction to grant relief for damages suffered through the negligence of the agents or servants of the State, as Judge Smith pointed out in his opinion.
2. The second ground stated by the Attorney-General for dismissing the claim was that the case was one submitted by law to a different tribunal than the Court of Claims for audit, determination and adjustment.
Judge Smith held that the motion to dismiss the claim must be granted on the first ground and also on the second ground because the statute provided a tribunal and method for affording relief in such cases in the Military Law.
Judge Smith further held that this court did not have jurisdiction to hear the claim in any event owing to this language in section 264 of the Code of Civil Procedure (now § 12, Ct. Claims Act), to wit: “ But the court 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.”
And so the claim was dismissed.
Apparently from the record in that case, as set forth in the published reports, Judge Cunningham and myself did not fully concur with Judge Smith in his interpretation of this language in section 264 of the Code.
However, upon reconsideration of the matter at this time I think there can be no doubt about the correctness of Judge Smith’s conclusions.
Again, in 1921, in the case of Lewis v. State (197 App. Div. 712), this exception to the jurisdiction of the Court of Claims in section 264 of the Code of Civil Procedure, now section 12 of the Court of Claims Act, was commented on by Justice John M. Kellogg, presiding justice of the Appellate Division of the Supreme Court, Third Department.
In that case Lewis, the claimant, was a member of the National Guard of this State. The company to which Lewis belonged was preparing to go into camp, and the claim alleged that, while he was handling boxes in the armory in connection with that preparation, he was injured.
The Court of Claims, acting under a special act of the Legislature for that particular case, rendered a judgment in Lewis’ favor for the damages received. This judgment was reversed by the Appellate Division, Third Department, on the ground that Lewis was injured through his own negligence and while engaged in an act which was a clear violation of his duty.
*344In addition, Presiding Justice Kellogg took occasion to remark in his opinion as follows, to wit: “ If the claimant had been injured in this case while performing a military duty, and without any fault on his part, very probably the case would fall under section 220 of the Military Law, which gives a pension.”
This decision was affirmed unanimously by the Court of Appeals without opinion. (Lewis v. State, 234 N. Y. 587.)
Later on we had the decision in Schmohl v. State (141 Misc. 274).
Schmohl was a regularly enlisted man in the National Guard and was assigned as a truck driver at the annual encampment of the 212th Coast Artillery at Port Ontario on July 24, 1925. While machine guns were being loaded on his truck, a cartridge that had been negligently and carelessly left in the chamber of one of the guns exploded and injured claimant’s arm.
He thereafter filed a claim against the State for damages in accordance with an enabling act duly passed by the Legislature and known as chapter 818 of the Laws of 1930, and recovered an award of $15,000.
The State defended on the ground that claimant’s only remedy was under the Military Law (§§ 220 and 223).
Judge Parsons held that the “ remedy under the Military Law (§§ 220, 223) is nowise exclusive. * * * In the case at bar two remedies are provided, to wit, sections 220 and 223 of the Military Law and chapter 818 of the Laws of 1930. The claimant has elected to pursue the latter remedy, which he has a right to do, as the Legislature has given him this right by the passage of chapter 818 of the Laws of 1930.”
This court, therefore, held in that case that but for the special enabling act the claimant’s only remedy would have been under the Military Law.
It is my understanding, therefore, that this claim cannot be disposed of under section 12-a of the Court of Claims Act because claims of this character are specifically exempted from the jurisdiction of the Court of Claims. In view of this fact, and in view of the fact that claims of the character here presented are specifically provided for in another and separate act of the Legislature known as the Military Law, it would be improper to hold in my judgment that the claimants herein can recover here against the State by virtue of section 12-a of the Court of Claims Act. Such claims can be taken out from under the provisions of the Military Law only by an amendment of the Military Law or by a special act of the Legislature applying to a particular case, as in the Schmohl case, or by a general act in which is incorporated a specific p"o-vision making the law applicable to those injured in the military *345service of the State or to the representatives of those who die as a result of injuries incurred in that service.
As Judge Parsons points out in the Schmohl case (supra), section 11 of the Workmen’s Compensation Law makes the remedy therein exclusive. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469.) There is no allusion in the Workmen's Compensation Law to enlisted men and officers in the State Militia or National Guard. There is nothing in the act nor in its history to warrant the assumption that the Legislature intended to deprive such officers and enlisted men of their rights theretofore granted them under the Military Law.
For the reasons above set forth I concur with Judge Gibbs in granting the Attorney-General’s motion to dismiss this claim.