Opinion
June 19, 1957
Appeal from the Court of Claims.
Present — McCurn P.J., Vaughan, Kimball, Williams and Bastow, JJ. [ 2 Misc.2d 955.]
Order insofar as appealed from reversed and matter remitted to the Court of Claims to exercise its original discretion as to whether, under all the circumstances disclosed by the record, late filing should be permitted. Memorandum: We believe that the Court of Claims erred in holding that the time had not expired within which respondent could file a claim as of right. In the view which that court took of the case, it was not called upon to exercise its discretion in determining whether late filing of a claim should be permitted (Court of Claims Act, § 10, subd. 5) and it clearly did not do so. Since the discretion is that of the Court of Claims ( Roswal v. State of New York, 279 App. Div. 815), subject to review by this court, the order should be reversed and the matter remitted to the Court of Claims to exercise its original discretion in determining whether, under all the circumstances disclosed by the record, late filing should be permitted. All concur.