(dissenting). Plaintiff-appellant appeals from an order granting judgment on the pleadings. The action was brought to recover damages alleged to have been caused by the negligence of the defendant, who was an employee of the State of New York in its highway maintenance department in charge of a group of men who were burning refuse and leaves, which caused a volume of dense smoke to obscure a much traveled highway (Route 20) for a considerable distance. The maintenance truck with a tar heating trailer attached, which was under defendant’s control, was parked upon the macadam portion of the highway within the zone of smoke and visible but a short distance. No warning by sign or otherwise was given indicating the obstruction. Appellant sustained serious injuries when his car collided with the tar heating trailer. He presented a claim for damages against the State in the Court of Claims, where it was determined that there was no liability, the court finding that the employees of the State were not negligent, and that defendant was. That judgment was affirmed by this court (256 App. Div. 856). Under quite similar circumstances, a railroad company has been held to be negligent when its employees kindled fires and the smoke obscured a portion of the nearby highway. (O’Connor v. New York Central Railroad Co., 280 N. Y. 532.)
The decision appealed from was made upon the theory that the judgment of the Court of Claims was res judicata, the defendant being an employee and privy of the State, and that the issues sought to be raised in this action were litigated there, as the alleged liability of the State arose under the doctrine of respondeat superior and solely on account of the negligence of this defendant, its employee. Under the authority of Good Health Dairy Products Corp. v. Emery (275 N. Y. 14) and numerous earlier decisions, it is *567unquestioned that the judgment of a court of competent jurisdiction on the merits in favor of the employer when the liability is derivative, is res judicata in a subsequent action against the employee. The Special Term has decided that the Court of Claims is a court of competent jurisdiction, and that its judgment is res judicata of the issues between this plaintiff and the defendant whose negligent act occurred in connection with his employment by the State. It is not questioned that plaintiff could maintain this action against the defendant except for the adjudication by the Court of Claims made in connection with the claim filed against the employer.
The Court of Claims has no jurisdiction except in connection with claims against the State. It may not consider even a counterclaim asserted by the State against a claimant. Its origin, history and jurisdiction are recounted in People ex rel. Swift v. Luce (204 N. Y. 478) in connection with the decision involving the constitutionality of chapter 856 of the Laws of 1911 by which the Court of Claims was abolished, and incidentally the tenure of the then judges terminated, and the Board of Claims created. It was there decided that the judges were not judicial officers, removable only upon the recommendation of the Governor with the concurrence of two-thirds of the members of the Senate, under section 11 of the then article 6 of the Constitution. The opinion in discussing the question states: “We are of the opinion that the section [section 11 of article 6 as it existed in 1912] does not apply. It cannot be extended so as to include any but judges of courts of law. There are many quasi-judicial officers in the State as to whom there is no pretense that they fall within the constitutional provision. The canal appraisers were such, as were the members of the board of audit. So also are the public service commissions [citation], the members of town boards of audit, supervisors acting as members of a board of audit of claims against a county, assessors and tax commissioners. The question is, therefore, whether the Court of Claims — so denominated by the Legislature — was in reality a court within the constitutional provisions, or only an auditing board and a quasi-judicial body. We think it was the latter. The Legislature was without power to create a new court with State-wide jurisdiction.” Discussing an attempt by the Legislature to grant general jurisdiction to city courts, the opinion continues: “ Despite this broad language, it was held that the Legislature could not confer upon these courts jurisdiction throughout the State, as that would trench upon the powers and jurisdiction of the Supreme Court. (Landers v. Staten Island R. R. Co., 53 N. Y. 450; People ex rel. Ryan v. Green, 58 id. 295.)” (Pp. 486, 487.) Chief Judge Cullen wrote the opinion in the Luce case before the present article 6 of the Con*568stitution was adopted in 1925. The Court of Claims received no additional recognition as a court of general jurisdiction therein, but rather the doctrine of the Luce case was emphasized. As in the previous article, the same class of judicial officers are removable on the recommendation of the Governor, with the concurrence of two-thirds of the members of the Senate (Art. 6, § 9), and in addition a new section was enacted: “ § 23. Nothing in this article contained shall abridge the authority of the Legislature to create or abolish any board or court with jurisdiction to hear and audit or determine claims against the State, and any such tribunal existing when this article shall take effect shall be continued with the powers then vested in it until otherwise provided by law.” Thereunder the present “ Court of Claims ” is a “ tribunal ” for the audit and determination of claims against the State, and not a court of law, and may be abolished at the will of the Legislature, and a board or commission to pass upon State claims created. Had this defendant-respondent been in the employ of a county on the occasion of the alleged negligent act, and had a claim for damages been presented to the board of supervisors and rejected, could it be said that the board, while auditing the claim, acted as a court and its rejection of the claim was a judgment that barred an action against the employee. If the answer be in the negative, then under the Luce case, a like answer must be given as to the effect of the Court of Claims judgment. The Supreme Court has, and from the time the plaintiff-appellant’s cause of action against the defendant-respondent arose had, jurisdiction thereof. The Legislature, by creating the Court of Claims could not, under the Constitution, curtail or limit that right. “ If a claim is made litigable at all, that is to say, if made the subject of a suit or litigation in a court of law, then under the express provision of the Constitution the jurisdiction of the Supreme Court attaches at once.” (Luce case, supra, p. 488.)
The issue in this case was triable by a jury (Civ. Prac. Act, § 425, subd. 1); this could only be waived as prescribed by law (Id. § 426). The filing of a claim against the State was not a waiver. The issues presented in the derivative claim against the State were not tried before a jury, but were considered by a tribunal with power to audit. The attempt by appellant to recover against respondent’s employer in the only forum in which the sovereign consents to appear does not preclude his right to seek relief against this private defendant in a constitutional court of general jurisdiction and before a jury.
Sturman v. New York Central R. R. Co. (280 N. Y. 57) does not involve the exact issue here presented, as the State and the railroad company were not privies, but it exemplifies that findings made in *569connection with claims against the State presented in the Court of Claims are not decisive in actions between private litigants. The plaintiff there sought to recover against the State in the Court of Claims, where a substantial judgment in her favor was rendered, which was reversed by this court (244 App. Div. 865) upon the finding that the “ sole and proximate cause of the accident ’’ was the driver’s (Levey’s) negligence in failing to observe and heed warnings. Our decision was affirmed by the Court of Appeals (269 N. Y. 627). Thereafter claimant brought an action for damages against the railroad company. Her complaint was dismissed at the Trial Term, the decision was affirmed by the Appellate Division (254 App. Div. 658), but reversed in the Court of Appeals (280 N. Y. 57), the opinion stating (p. 63): " A claim made by this plaintiff against the State for compensation for her injuries was heretofore dismissed on a finding that the sole proximate cause of the accident was the failure of Mr. Levey, the driver of the automobile, to heed warning signs placed by the State to apprise passing motorists of the potential danger of the narrow bridge [citation]. This defendant was not a party to that litigation [citation], nor was the negligence of Mr. Levey to be imputed to the plaintiff [citations].” It having been determined by this court and by the Court of Appeals in connection with the claim against the State, that plaintiff’s injury was caused solely by the negligence of Levey, it is difficult to understand upon just what theory the New York Central Railroad Company was liable.
Assuming that there is merit in plaintiff-appellant’s cause, he had a right, under the common law, to recover against the defendant-respondent and against the State as employer. Because of the State’s sovereignty it could not be sued in the law courts. This did not affect plaintiff’s right but only his remedy. Formerly his only remedy against the State was by an act of the Legislature. Had the Legislature refused to make money available, and approve his claim by appropriate legislation, could it be said that the refusal of the Legislature to act was res judicata as to the right to seek a remedy against defendant in a court of law. The Court of Claims performs the functions and has the jurisdiction formerly exercised by the Legislature. Its audit and rejection of a claim should have no determinative effect as to an action pending in the law courts between these private parties.
The order and judgment should be reversed on the law, with costs, and defendant permitted to plead.
Order and judgment affirmed, with costs.