(concurring). We are here concerned with the provisions of sections 12, 12-a and 15 of the Court of Claims Act as they existed in 1932-1933. (L. 1920, ch. 922, as amd.) Said section 12 defined the jurisdiction of that court. It was derived from section 264 of the old Code of Civil Procedure and was added by chapter 36 of the Laws of 1897. In purpose and effect it granted jurisdiction to the Court of Claims to hear- and determine private claims against the State. As to such claims the State there consented to have its liability determined. It waived the defense of sovereignty but not its immunity from liability in any ease or classes of eases. Thus as to any claims as to which there was liability on the part of the State that court was given jurisdiction to hear and determine them. It was designated as the trial forum. In support of the foregoing I quote the following from Smith v. State of New York (227 N. Y. 405, 409), written in reference to section 264 of the Code of Civil Procedure, the antecedent of the aforesaid section 12 of the Court of Claims Act: “ It was not enacted, as it seems to me, for the purpose of extending or enlarging the liability of the State, but solely for the purpose of declaring the jurisdiction of the Court of Claims, before which questions of liability might be tried.
“It is true, as urged, that the section confers upon the Court of Claims jurisdiction of the broadest character. The State, under the terms of the section, must be treated as having waived its immunity against actions as to all private claims. (People ex rel. Swift v. Luce, 204 N. Y. 478; People ex rel. Palmer v. Travis, 223 N. Y. 150.) But it is thoroughly established that by consenting to be sued, the State waives its immunity from action and nothing more. It does not thereby concede its liability in favor of the claimant or create a cause of action in his favor which did not theretofore exist. It merely gives a remedy to enforce a liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. (Roberts v. State of N. Y., 160 N. Y. 217.) Immunity from an action is one thing. Immunity from liability for the torts of its officers and agents is another.”
Section 58 of the Highway Law (originally § 176; L". 1909, eh. 30, amd. L. 1910, eh. 570) is an instance of such a waiver of immunity. There the State waived its immunity from liability for damages suffered from defects in State highways maintained by the patrol system, between May 1st and November 15th. *1013Such substantially has been the statute since the 1910 amendment aforesaid. The liability which the State there assumed did not extend to an adoption of the doctrine of respondeat superior and thus it could not be occasioned because of the personal negligence of the State's officials or employees. (Kinds v. State of New York, 144 Misc. 464, affd. 240 App. Div. 742, affd. 264 N. Y. 525.) In other words, for damages occasioned because of a defective condition of the highway as distinguished from one caused or existing because of the negligence of the State’s officers or employees — a distinction which might be at times difficult to draw —■ the aforesaid section of the Highway Law, during the period of the patrol system, did, as now, waive the State’s erstwhile immunity from liability.
Section 15 of the Court of Claims Act is also derived from the aforementioned section 264 of the old Code of Civil Procedure. It prescribed in 1932, as now, certain procedural provisions which were required to be followed in order that the jurisdiction of the court as defined by section 12 of the Court of Claims Act could function as regards the claim presented. Such procedural provisions therefore applied, and alone were requisite, as to all those claims for damages where the State’s liability arose by reason of its statutory waiver of immunity, other than those arising under the waiver given by section 12-a (supra) which carried new procedural provisions peculiar to it. Until the adoption of the latter (L. 1929, eh. 467), there could be no liability on the part of the State for damages occasioned by the negligence of its officers and employees. It was there, by section 12-a (supra) and for the first time, that the State waived its immunity from liability for torts of its agents. (Jackson v. State of New York, 261 N. Y. 134, 138.)
Thus as to the time when the cause of action in question accrued, viz., May 23, 1933, where must we look to find the statutory pronouncement of the State’s waiver of liability on account of the cause of action set forth in the claim or notice of claim which was filed? If it is section 12-a (supra) then it seems to me that the procedural provisions with respect to filing the claim or notice thereof, as therein required, must have been complied with. This was not done. It seems to me that in view of the decisions in the case of Smith v. State of New York (268 N. Y. 551), we must hold that the reference in section 12-a to damages for personal injuries includes a death ease. In that case the claim grounded liability solely on the negligence of a State employee while acting as such.
If, however, the caus'e of action set forth in the claim in question easts a liability upon the State on account of a defect in its highway because of a condition distinguishable from one arising because of the misfeasance or negligence of a State officer or employee, then, in my opinion, the procedural provisions of section 12-a (supra) do not apply because the claim does not originate by virtue thereof. Rather, in such case, we look to the Highway Law (§ 58, supra) for such waiver of immunity and, as to that, only the procedural provisions of section 15 of the Court of Claims Act need to be complied with. This was done.
The specifications of the claim filed in its description of the negligence of the State seem to allege negligence on the part of the State because of conditions and things which might be shown to have been wholly removed in tort from the personal misfeasance or negligence of the State’s officers or employees. If so established, then due and proper compliance with all required procedural provisions was had. The claim was filed within the period required by section 15. While it seems that the accident occurred after the close of the State’s mainte*1014nanee of its patrol system and not during the period wherein the State had waived its immunity, still that question is not before us. It should be adjudicated in the Court of Claims. The order of dismissal should be reversed and the matter remitted to the Court of Claims for trial and determination as to whether liability can be established under section 58 of the Highway Law.