I concur with Judge DYE for reversal on these grounds:
1. The contract between plaintiff and defendant contains an express promise by the latter to pay the former for the construction work. That contract contains no such promise by the State or any State office or body, nor is it signed as a party by any of the latter.
2. Despite that express engagement by defendant, the majority of this Court is dismissing plaintiff's complaint on a ground which makes it impossible for plaintiff to sue defendant in any court on a breach of that promise to pay, since access to the Supreme Court is forbidden, and defendant cannot be sued in the Court of Claims. *Page 516
3. A dismissal of this suit on jurisdictional grounds can be based only on a holding that as matter of law the complaint itself is directed against defendant, not in its own corporate capacity but in its "official status" as an agent of the State (See Adler, Inc., v. Noyes, 285 N.Y. 34, 37). There is nothing to that effect in this complaint.
4. The language of the Constitution (art. VII, § 14) requiring the State to pay the whole cost of grade crossing eliminations "in the first instance", which language is relied upon by the majority here as imposing direct and exclusive liability on the State to pay the charges of those doing the actual work, has been held by this Court in Matter of Kolb v. Holling (285 N.Y. 104,110), to have no such meaning or effect.
5. The agreement between plaintiff and defendant that the latter need not pay the former until three days after the State has paid the latter, might be the basis of a defense to this suit — it cannot deprive the Supreme Court of jurisdiction to entertain the cause.
LOUGHRAN, LEWIS and THACHER, JJ., concur with LEHMAN, Ch. J.; CONWAY, DESMOND and DYE, JJ., dissent in opinions by DYE, J., and DESMOND, J.
Judgment affirmed.