We would affirm the order of the Court of Claims dismissing appellant’s claim on the grounds that the court did not have jurisdiction of the subject matter and that the claim failed to state a cause of action.
The Court of Appeals decision in Matter of Keystone Assoc. v. Moerdler (19 N Y 2d 78, mot. for rearg. den. 19 N Y 2d 598) held that chapter 691 of the Laws of 1966 was unconstitutional in that it unreasonably deprived the appellant of the beneficial use of its property without payment of just compensation.
Clearly the statute would have been upheld had the Legislature required the Old Met Opera House Corporation to post a reasonable security in the event it failed to complete the condemnation proceedings.
Though the State may have chosen to intervene into the proceedings in Matter of Keystone v. Moerdler (supra) this cannot and should not be construed as an admission of liability on its part; the State has the right and duty to intervene in many suits brought by and against private “ persons
While the State by enacting the Court of Claims Act has, in part, terminated its immunity derived from its status as a sovereign (Weiss v. Fote, 7 N Y 2d 579; Bernardine v. City of New York, 294 N. Y. 361), the State has clearly not waived its immunity from suit when performing a purely governmental function (Gross v. State of New York, 33 A D 2d 868; Granger v. State of New York, 14 A D 2d 645). Unquestionably the enactment of a statute is a purely governmental function not comparable to the acts of individuals or corporations, and the State thus cannot be sued for such enactment. Further, a void statute confers ■ no rights and imposes no duties (Matter of Kesbec, Inc. v. Taylor, 253 App. Div. 353, mod. sub nom. Matter of Kesbec, Inc. v. McGoldrick on other grounds 278 N. Y. 293, rearg. den. 278 N. Y. 716). Moreover, the enactment of the statute did not cause appellant’s alleged injuries. The statute authorized the creating of an autonomous, private corporation (see L. 1966, ch. 691, § 7) which, upon its creation should any interested private citizen desire such, could acquire or purchase (see L. 1966, ch. 691, § 3) the Metropolitan Opera House. Should the corporation receive notice of the possible demolition of the building it could deposit $200,000 as security and then the Superintendent of Buildings in New York City could, if he so chose, refuse to issue a demolition permit for a period of 180 days, giving the corporation time to raise sufficient capital *181for such acquirement (see L. 1966, ch. 691, § 8). Thus it was the action of the Old Met Opera House Corporation which brought about the running of the 180-day moratorium period on the issuance of “ condemnation ” proceedings by the corporation which caused the appellant’s alleged injuries. We cannot agree with the following statement in the majority memorandum: “ A reading of chapter 691 of the Laws of 1966 discloses that although the condemnation was to be accomplished by a presumably autonomous and private corporation, the initial 180-day appropriation would occur by the force and effect of the special law without any reference to condemnation proceedings ”. As we have pointed out, it was the action by the Old Met Opera House Corporation which brought about the 180-day stay and not ‘ ‘ the force and effect of the special law ’ ’ alone. Moreover the statute says the Superintendent of Buildings “ may ” refuse to issue the permit which made it discretionary with the Superintendent as to whether the permit would be refused. It is difficult to see how the State can be said to have itself prevented the demolition under these circumstances. The State is not liable for any action taken by the Old Met Opera House Corporation. This corporation does not meet any of the traditional tests applied when an ‘ ‘ agency ’ ’ relationship has been found which vests jurisdiction in the Court of Claims (see Story House Corp. v. State of New York Job Development Auth., 37 A D 2d 345).
Matter of Keystone Assoc. v. Moerdler (supra) does not explicitly or implicitly place liability for the appropriation upon the State. The court noted that ‘ ‘ the Legislature is not willing to invest public funds in order to appropriate the building and is perfectly willing to see it demolished in six months if private funds are not forthcoming” (Matter of Keystone Assoc. v. Moerdler, supra, p. 87).
The State of New York has delegated the power of condemnation to many private corporations in this State vested with a public interest (i.e., railroads, public utilities), however, the State has not been held accountable for their actions.
In our view, the order of the Court of Claims should be affirmed.
Greenblott and Sweeney, JJ., concur with Herlihy, P. J.; Cooke and Reynolds, JJ., dissent and vote to affirm in an opinion by Reynolds, J.
Order reversed, on the law and the facts, and motion to dismiss claim denied, without costs.