Mr. Justice Hinman in a very able opinion properly narrows down the questions to be considered on this appeal to two: “ First, as to whether the above provision became a part of the contract by necessary implication, thus qualifying the liability of the State under the lease so as to make it binding upon the State only to the extent that moneys should become available for the payment of rent.” The provision referred to is section 3, subdivision 7, of the Public Buildings Law (as amd. by Laws of 1915, chap. 403). The part of said section and subdivision in any way applicable here reads as follows: “Each such lease shall contain a clause that the contract of the State thereunder shall be deemed executory only to the extent of the moneys available, and no liability shall be incurred by the State beyond the money available for the purpose.” There is no question but that this provision of the statute must be considered as read in the lease in question. The lease bears date as of January 1,1921; by agreement it was not to take effect until the first of the following March so far as the payment of rent was concerned. *181That the lease was executed by the proper parties on the part of the State is not questioned on the part of the respondent. Section 3, subdivision 7, was in effect when the lease was made. It is not questioned, and cannot be questioned but that the State complied with the statute in such cases when the lease was executed, and that there were funds available to pay the rent under the appropriation as it then existed. The rent was paid from March 1 to August 1, 1921. There is no claim that any officer exceeded his authority and it is to be presumed that such payments were made in accordance with the law. Whether the word “ executory ” as found in section 3, subdivision 7, shall have the force to require every contract entered into by the State always executory, and never executed, unlike all other contracts known to the law, might present a situation calling for judicial interpretation; but in this case I do not consider it an obstacle to the reversal of this judgment. The observation made in Belmar Contracting Company v. State of New fork (233 N. Y. 189) is not applicable to the facts in this case, and as I view it was not called for on the facts in that case. The Comptroller delayed signing a contract awarded to the contractor; he did after considerable delay sign it, and the contractor accepted it. Afterwards he sought to make the State liable for the consequences of such delay. It was not a contract until signed by the Comptroller, and when it was signed, after such delay, the contractor could have refused to accept it. The second question considered by the learned justice is as follows: “ Second, whether during the months of August, September, October and November, 1921, there were any moneys available for the payment of rent under said lease.” The State Industrial Commission was reorganized by the Legislature of 1921, at which session chapter 340 of the Laws of 1921 was enacted and became a law April 30, 1921. In and by that statute $1,500,000 was appropriated out of moneys not otherwise appropriated “ for personal service and for maintenance and operation of the Labor Department for the fiscal year beginning July first, nineteen hundred and twenty-one, and ending June thirtieth, nineteen hundred and twenty-two. Of the amount hereby appropriated, not to exceed one million two hundred thousand dollars shall be available for personal service.” Henry D. Sayer was the Industrial Commissioner appointed under the revised Labor Law, being the reorganization statute, and ■under the said special appropriation act (Laws of 1921, chap. 340) it was provided that he should file with the Governor, the chairman of the Senate finance committee and the chairman of the ways and means committee of the Assembly, “ a tentative segregation of the amount hereby appropriated.” He proceeded *182to designate the whole amount of $1,200,000 for personal service, and of the balance he set aside only $30,424 for rent, arbitrarily excluding this lease from participation; the balance of the $300,000 he says “ was utilized for the expenses of maintenance and operation of the department, including rent, communications, traveling expenses, equipment, and supplies, etc.” He says the foregoing item of $30,424 was included in the enumeration last above given by him. It is obvious that the majority of the items in and by which he seeks to account for the disappearance of the $300,000 could not be known until the last half of the fiscal year commencing July 1, 1921. There is no evidence before us as to what constituted the segregation. In addition to the foregoing amount of $1,500,000 there was on hand, on February 1, 1921, an unexpended balance, previously appropriated for the maintenance of this department, of $1,217,236.60, which by section 12 of chapter 642 of the Laws of 1921 (amdg. Labor Law [Consol. Laws, chap. 31;' Laws of 1921, chap. 50], § 473) was reappropriated for the use of this department. As the case- stood at the close of the evidence, prima facie, there was money to pay this claim. This record presents, very forcibly, the question, “ what became of the money? ” If it was not there, the appellant was not called upon to furnish that information. We are not required to relieve the State of the necessity of proving its defense any more than if it was an individual. It is dangerous doctrine to say that where there are equal claimants, an officer can arbitrarily cut off one claimant, depriving him of compensation, and say to the other you shall be paid. It impresses me now that a new trial should be had.
Judgment affirmed, with costs.