(dissenting). I cannot agree with the view of the majority in this case. At about eight o’clock on December 23, 1949, Charles J. Quigley accompanied by his wife Joan was operating his automobile in an easterly direction on New York State highway 44 in Dutchess County. This highway consists of two concrete lanes each nine feet in width. As the car was rounding a curve at a point known as “ Pish Hatchery Hill ” the car started to skid, the driver lost control and the vehicle went to the left side of the highway and collided with a car moving in the opposite direction. As a result of the collision Mr. Quigley was fatally injured and his wife sustained serious personal injuries.
Claims against the State of New York were presented, one by claimant for personal injuries sustained by her and the other as administratrix of her deceased husband. The court below made an award in her favor in the sum of $28,123.90 in the death action and $10,680.40 for her personal injuries. The State has appealed from these judgments - and the claimant has cross-appealed on the ground of inadequacy of the awards. •
About one half mile west of the scene of the accident there is a sharp curve and a descending grade to the east and at a point about 700 feet west of the place where the collision occurred there is a heavy descending grade. Just west of the point of collision the road again curves and according to the testimony of an engineer formerly employed by the State this was a very sharp curve. The pavement is banked with ditches on either side and there is a concrete gutter on both the north and the south sides. *191On a curve about 100 feet west of the scene of the accident there is a separation between the two slabs of concrete about three inches in width, the south slab having settled about one to one and one-half inches and this separation continued for a distance of seventy-two feet. A deputy sheriff of Dutchess County testified that this separation was about twenty feet west of the point of collision and the north slab ivas about one and one-half to two inches higher. He said he made measurements and found the separation to be four inches in width in one spot for a distance of about eight feet. This witness had lived in that locality for forty-one years and had been accustomed to travel over this highway several times weekly. He said this separation between the concrete slabs had existed for a period of at least two years. His testimony in that respect was corroborated by another deputy sheriff of Dutchess County. There was considerable ice on the highway where the cars collided. At this point there was also a sharp blind curve and a descending grade and those factors taken in connection with the separation between the concrete pavement justified a finding of negligence on the part of the State. Unquestionably this highway was defectively maintained at the point of collision and the State is liable for what occurred (Cook v. State of New York, 301 N. Y. 780).
There is no claim here that either the decedent or his wife was guilty of contributory negligence. In my opinion the Court of Claims properly imposed liability on the State. I am convinced, however, that the damages aivarded in each case are wholly inadequate.
The judgments should be modified by a substantial increase in the amounts awarded in each case and as so modified affirmed, with costs to claimant.
Foster, P. J., Bergax and Coox, JJ., concur with Brewster, J. ■ Hefferxax, J., dissents, in a memorandum.
Judgments reversed, on the law and facts, and claims dismissed, without costs, all findings of the court below inconsistent with the opinion are reversed and new findings made in accordance herewith. Settle order on notice.