Claimant is the owner of a small building on Porter avenue in the city of Buffalo. On the 13th day of November, 1922, he had stored in this building certain goods, wares and merchandise consisting of cigars, cigarettes, tobacco, soft drinks, etc., of the value of $401.50.
On said 13th day of November, 1922, a motor truck belonging to the State of New York, and engaged in work connected with the canals, and driven by one of the employees of the State, as found by the Court of Claims (123 Mise. 48), ran into claimant’s building and damaged it and some of' his personal property stored there.
The accident did not occur on canal lands, but the court found that it was “ a short distance from New York State canal terminal property.”
Section 47 of the Canal Law (as amd. by Laws of 1915, chap. 494) provides in part as follows: “There shall be allowed and paid to every person sustaining damages from the canals or from their use or management, or resulting or arising from the neglect or conduct of any officer of the State having charge thereof, or resulting or arising from any accident, or other matter or thing connected with the canals, the amount of such damages to be ascertained and *574determined by the proper action or proceedings before the Court of Claims; but no judgment shall be awarded by such court for any such damages in any case unless the facts proved therein make out a case which would create a legal liability against the State, were the same established in evidence in a court of justice against an individual or corporation; * *
It will be noticed that section 47 of the Canal Law, as above quoted, permits recovery of damages from the State which have resulted, first, from use or management of canals; or, second, from neglect or conduct of any officer of the State having charge of the canals; or, third,, from any accident or other matter or thing connected with the canals. I think this section of the Canal Law sufficiently broad to establish the State’s liability under the facts in this case.
Counsel for the State urges that it is not hable because claimant’s ‘ damages did not arise or result “ from any accident, or other matter or thing connected with the canals.”
The Court of Claims found that at the time of the accident the operator of the truck in question was an employee of the State in the Canal Department, and was driving a motor truck belonging to the State, and engaged in work connected with the canals, and that while so employed the employee carelessly and negligently caused said motor truck to be driven into and against claimant’s building, causing the damages complained of, for which the award was made.
I think the evidence fairly supports these findings.
The evidence is undisputed that the driver of this truck had been engaged in that work previously and “ going to the canal yard with lumber and cinders.”
Sometime previously complaint had been made to the Assistant Division Superintendent of Canals at Buffalo with reference to the conduct of this same driver and that official knew that he was a drinking man, but he was kept in State employ for a considerable period after that and up to the time of the accident.
The evidence shows that this truck driver was employed by the State and was on the canal division the day of the accident, and his duties were to drive a truck.
After he hit claimant’s building on his return to the canal yard he reported to his superior officer, the foreman of the canal yard, the fact of the accident, and employees of the State were immediately sent to claimant’s building with lumber and materials and made temporary repairs.
From these facts and other facts disclosed in the record, the Court of Claims was justified in finding that at the time of the *575accident the driver of this truck was a State employee and engaged in canal work.
While the driver of the truck was not an officer of the State in the sense that that word is ordinarily understood, and having charge of the canal work at Buffalo, still it has been held that the words “ officer of the State having charge thereof ” in section 1 of chapter 321 of the Laws of 1870, an antecedent of section 47 of the Canal Law, were merely descriptive and were intended to “ embrace all those persons in the employ of the State intrusted with the performance of duties relating to the canals, and from a neglect or omission to perform which damages might occur to individuals.” (Sipple v. State, 99 N. Y. 284.)
The Court of Appeals held further in that same case that “ the act [antecedent of Canal Law] is broad and comprehensive in its language, and should be construed in the spirit which inspired its enactment.”
If an action had been brought by plaintiff for these damages against an individual or a corporation, charging that a servant in charge of a truck of the employer had negligently driven the truck into plaintiff’s building to his damage, there can be no question that the facts, if established, would create a legal liability. Under similar circumstances there is a like liability against the State by the express provisions of section 47 of the Canal Law.
The judgment should be affirmed, with costs.
Taylor, J., concurs; Crouch, J., concurs in a separate memorandum; Hubbs, P. J., and Sears, J., dissent in an opinion by Hubbs, P. J.