(dissenting):
A driver of a truck owned by the State and used by it in work upon the canal negligently damaged the plaintiff’s property. At the time the truck was not upon State land, but was returning *576from a trip made on the business of the State. The State has been held liable under the provisions of section 47 of the Canal Law (as amd. by Laws of 1915, chap. 494), which reads: “ 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 determined 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; * * *.”
In the opinion of the Court of Claims (123 Misc. 48) the liability of the State is based upon the ground that the accident arose from “ other matter or thing connected with the canals.” It seems to me that a fair reading of the section demonstrates that the words quoted do not justify the holding. To me it seems clear that those words refer to matters or things directly connected with the canals, things in the nature of fixtures, machinery and appurtenances.
The Court of Claims found, however, that the driver of the truck was an unfit person to retain in that position, because on various occasions he had been intoxicated while on duty to the knowledge of the Assistant Division Superintendent, his superior in charge of the work. If the award is to be sustained it must be upon the ground that the Assistant Division Superintendent was negligent in retaining an unfit employee, one who had, to his knowledge, been intoxicated on previous occasions while driving the truck. It can be argued with some plausibility that the negligence of the Assistant Superintendent came within the wording of the section, “ resulting or arising from the neglect or conduct of any officer of the State having charge ” and that “ the facts proved therein make out a case which would create a legal liability * * * were the same established in evidence in a court of justice against an individual or corporation.” I do not think the section is susceptible of either construction suggested.
The State is not hable for the neglect of its officers or employees unless made so by express provision of statute, and a waiver of immunity from liability must be clearly expressed (Smith v. State, 227 N. Y. 405.) I find nothing in the decision of Sipple v. State (99 N. Y. 284) to the contrary.
Primarily the section gives a cause of action to any person suffering *577damages “ from the canals or from their use or management.” Then follow the two clauses in question — the negligence of an officer and damages “ resulting or arising from any accident, or other matter or thing connected with the canals.” Those clauses refer to damages arising “ from the canals or from their use or management.”
To hold that the doctrine of respondeat superior applies, so that the State is hable for the negligence of an employee outside of the canals or their use and management is not justified by the wording of the section. Section 47 of the Canal Law reads practically the same as section 1 of chapter 321 of the Laws of 1870, one of its antecedents. Since the enactment of that statute there has not been a single case reported where an attempt was made to make the State hable on a claim of this kind.
“ That the defendant is not liable in this action may also be strongly argued, from the circumstance that no such action as the present has ever been sustained in any of the courts of this country, although the occasion for it has been frequent and pressing.” (Ryan v. New York Central R. R. Co., 35 N. Y. 210.) The novelty of a particular action or defense, where the facts upon which it is founded are of common occurrence, is a strong argument that it cannot be upheld. (Costigan v. Mohawk & Hudson R. R. Co., 2 Den. 609.)
There is no other provision of statute making the State hable for neghgent acts of State employees under similar circumstances, although the reason for so doing is as cogent as in the case at bar.
I advise that the judgment be reversed and the claim dismissed, with costs.
Sears, J., concurs.Judgment affirmed, with costs.