Neither claim states a valid cause of action for damages and none exists; and there seems no occasion, and certainly no compulsion, for judicial definition — by an intermediate appellate court at least — of a new or previously unrecognized right to monetary compensation. Basically, there is involved the situation of a cloud on title for which there exists the same equitable remedy under article 15 of the Beal Property Actions and Proceedings Law that was successfully pursued in Schulman v. People (10 N Y 2d 249).
Absent malice or bad faith, neither slander of title nor a comparable form of tortious interference occurred. (33 Am. Jur., Libel and Slander, §§ 346, 348; Ann. 39 ALR 2d 840, Slander *27of Title—Recording Instrument; 30 Am. Jur., Interference, § 39.) There may be a taking if the deprivation of use was too long (see Matter of Comrs. of Palisades Interstate Park, 216 N. Y. 104), but such is not a tort. Trespass was not committed because there was no physical intrusion, that is, an invasion of the land by a person or thing, without the possessor’s consent. (Restatement, Torts 2d, § 158, comment c; Prosser, Torts [3d ed.], pp. 69, 73; Harper and James, Law of Torts, §§ 1.5, 1.7; 52 Am. Jur., Trespass, § 13, and generally cf. 6 Nichols, Eminent Domain [3d ed.], § 26.45.)
Additionally, each party is presumed to have known the invalidity of the Superintendent’s act and hence claimants’ compliance with it must be deemed voluntary. (Holland v. Atlantic Stevedoring Co., 210 App. Div. 129, affd. 239 N. Y. 605; Barrett v. State of New York, 220 N. Y. 423.) Despite the merely seeming inconsistency arising from the fictional nature of the presumption, the Superintendent’s mistake was made in good faith and gave rise to no liability on his part (see Cooper v. O’Connor,. 99 F. 2d 135, 138, cert. den. 305 U. S. 643) and hence the State should not respond in damages.
In view of the conclusions stated, the question of the applicability here of the waiver of sovereign immunity is not reached (but cf. Granger v. State of New York, 14 A D 2d 645).
On the prior appeal (19 A D 2d 434) was submitted only the question of the timeliness of the claim and no issue as to its validity was either presented or determined.
The judgment should be affirmed.
Gibson, P. J., and Reynolds, J., concur with Herlihy, J.; Gibson, P. J., concurs in separate opinion in which Herlihy and Reynolds, JJ., concur; Taylor, J., dissents and votes to reverse and to grant new trials in the following memorandum, in which Attt.tkt, J., concurs: In our view the imposition of restrictive easements upon the premises of claimants without statutory authority (Schulman v. People, 10 N Y 2d 249) amounted to unlawful intrusions in the nature of continuing trespasses for the consequences of which the State should be required to respond in damages. (6 Nichols, Eminent Domain [3d ed.], § 28.3, subd. [1]; Folmsbee v. City of Amsterdam, 142 N. Y. 118, 125; Village of St. Johnsville v. Smith, 184 N. Y. 341, 345.)
Judgment of dismissal affirmed, without costs.