(dissenting). Although I agree with the opinion of the majority of the court in interpreting the word “ Comptroller ” *123in section 7 as meaning State Comptroller, I dissent from such opinion for the following reasons:
1. The commission has two functions or duties: (a) In reference to elimination of grade crossings; (b) in reference to terminals. (Laws of 1911, chap. 842; Laws of 1923, chap. 231; Laws of 1928, chap. 679.)
2. Prior to the State bond issue provisions in the Constitution, the payments for eliminations, so far as Buffalo was concerned, were a matter of adjustment between the railroad company and the city on each individual job. The provisions of the State Constitution for bond issue for grade crossing elimination was with the object of financing elimination jobs so as to relieve railroads and municipalities from a part of the cost. The amendment (Art. VII, § 14) to the Constitution which went into effect January 1, 1939, provided for the outlay by the State for the expense of each elimination as it arose and specifically limited the amount that could be charged by the State authorities against the railroad. These constitutional amendments did not in any way cover the general expense of maintaining commissions, whether they be State or local. What was done in adopting the amendments to the Constitution was to provide for specific expenditures for specific jobs with limited reimbursement by the railroad. The Department of Public Service (formerly the Public Service Commission and the Transit Commission) has certain overhead expenses (salaries, rent, means of communication, etc.) which are paid by the State and are not considered part of the expense of any specific job or jobs of elimination. In logic, therefore, it appears to me that the general overhead, including the salary of the petitioner herein, of the Buffalo grade crossing commission, is still a charge to be paid for by the city with the added thought that when any specific item of the expense of that overhead is chargeable to a specific job of elimination, then that specific item of overhead may be reimbursable on the approval of the State authority (Department of Public Service).
As to the remedy available to the petitioner herein, ordinarily we might say that the employee has a remedy consisting of bringing suit against the city for his services, but here we have involved the entire question of the overhead of the local commission, and I believe that the remedy best available is that sought in the petition herein.
' The order appealed from should be affirmed, with costs to the petitioner.
Order reversed on the law, without costs of this appeal to any party, and proceeding dismissed, without costs.