The State appeals from a judgment of the Court of Claims for $9,000 and interest, damage to real property belonging to claimants located at the northeast comer of Central avenue and Seventy-eighth street in the borough of Queens, caused by a change of grade of Central avenue in connection with the elimina*526tion of a grade crossing at Proctor street with the Montauk Division . of the Long Island Railroad Company. Central avenue was and is one of the main connecting streets between the boroughs of Brooklyn and Queens. It formerly was eighty feet wide. Now the central sixty feet has been depressed eleven feet and one inch opposite claimants’ property. A sidewalk and marginal driveway is maintained along the northerly side of the avenue, being separated from the depressed portion by a wall about five feet high.
The elimination was authorized on March 13, 1930, by the Transit Commission of the City of New York, the physical changes made prior to November 1, 1934, and the structures approved by the Commission on June 19, 1935. Appellant admits in its brief that “ there is no question that the value of claimants’ property was lessened by reason of the elimination, * *
Grade crossing eliminations in the city of New York are effected under the “ New York City Grade Crossing Elimination Act ” (Laws of 1928, chap. 677, as amd.), being sections 2041 et seq. of the Unconsolidated Laws. Unless there be statutory authority damages may not be awarded for injury to unappropriated real property adjacent to an elimination project. Section 2047, supra, is the authority for this judgment. “ If the work of such elimination causes damage to property not acquired as above provided, the State shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law.” The section in a later portion fixes the method for presentation of a claim to the Court of Claims. Liability existed in law on behalf of the city for damages to unappropriated adjacent real property suffered through the change of the established grade of a street. “ An abutting owner who has built upon or otherwise improved his property in conformity with the grade of any street or avenue established by lawful authority, and such grade is changed after such buildings or improvement have been erected, and the lessee thereof, shall be entitled to damages for such change of grade.” (Greater N. Y. Charter, § 951.) The above-quoted portion of the section is followed by provisions governing the procedure before a board of assessors in connection with the fixing of damages incurred.
The Court of Claims has determined that claimants are entitled to recover under the following authorities: Askey & Hager, Inc., v. State of New York (240 App. Div. 451; affd., 266 N. Y. 587); Champion Oil Co., Inc., v. State of New York (161 Misc. 143; affd., *527251 App. Div. 781; leave to appeal to the Court of Appeals denied, 275 N. Y. 649); Caldwell & Ward Brass Co. v. State of New York (161 Misc. 147; affd., 251 App. Div. 781; affd., 277 N. Y. 547); Knights v. State of New York (161 Misc. 552; affd., 251 App. Div. 781; leave to appeal to Court of Appeals denied, 275 N. Y. 650); Buffalo Co-operative Stove Co. v. State of New York (252 App. Div. 228); Matter of Atherton v. Village of Allegany (270 N. Y. 525); Matter of Reitz v. Village of Allegany (Id. 525); Matter of First Methodist Episcopal Church of Whitehall (272 id. 562); West 158th Street Garage Carp. v. State of New York (256 App. Div. 401, 404).
Three of the above have to do with the villages of Allegany and Whitehall. In connection therewith section 2016 of the Grade Crossing Elimination Act (Laws of 1928, chap. 678) applies “ outside of the cities of New York, Buffalo and Syracuse.” The language is identical with section 2047, earlier quoted, and subdivision 2 of section 159 of the Village Law creates the liability in connection with the change of grade in a village street, the language being: “ Whenever the grade of any street, highway or bridge in any incorporated village in this State shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway * * *.” Damages may be recovered against the municipality charged with the maintenance of the street.
The Askey & Hager and West 158th Street cases (supra) dealt respectively with eliminations in Buffalo and New York city.
Under the authorities, it has been determined that sections 2016 and 2047 (supra) create liability on behalf of the State in connection with elimination projects whenever and wherever liability exists at law for damages arising through a change of grade for any purpose. The Village Law (supra) creates liability against the municipality having charge of the village streets whenever a grade is changed so as to interfere with the adjacent buildings.' The State in elimination projects is liable in the first instance therefor under the Atherton and Whitehall cases (supra). The Greater New York Charter (§951) creates liability whenever for any purpose an established grade is changed so as to interfere with adjacent buildings. The State in elimination projects is liable in the first instance therefor under the Askey & Hager and West 158th Street cases (supra).
The judgment of the Court of Claims should be affirmed, with costs.
*528Bliss and Foster, JJ., concur; Crapser, J., dissents with an opinion, and votes for reversal; Heffernan, J., dissents.