The claim is similar in character to the claim of the same claimant, No. 14400, and is for the recovery of the amount expended by claimant in connection with the work of constructing a new bridge over the canalized Mohawk river within the village of Waterford.
The majority of the members of the court sitting in this case have awarded judgment in favor of the claimant for the sum of $121,557.91 with interest as in the findings directed.
Among the items going to make up the amount for which judgment has been awarded are payments made by the claimant company to property owners in the village of Waterford for damages arising from the change of the grade of the claimants railroad at and near the approaches to the bridge in question claimed to have been made necessary by the raised elevation of the bridge, payment to the village of Waterford to reimburse it for disbursements made for legal advice, etc., and an item for the claimant’s expense in procuring the services of an expert witness, amounting in the aggregate to $39,658.39 as set forth in the ninth finding of fact and the fifth conclusion of law.
For the reasons set forth in the dissenting opinion in the claim of this claimant No. 14400, I must dissent *29from this award in its entirety. If I am right in the conclusion which I have reached in that case, this claim is without foundation and should be dismissed.
In any event, though the conclusion which my learned associates have reached that the claimant is entitled to be compensated for the cost of the bridge and its approaches be sustained, there is in my judgment no foundation for that part of the claim which has been sustained by the ninth finding of fact and the ■fifth conclusion of law.
With regard to this branch of the case, it appears that before proceeding with the work of the construction of the bridge and its approaches claimant applied to the village of Waterford for permission to change its grade in one of the village streets and such permission was granted upon the agreement in writing on the part of the claimant whereby claimant assumed the payment of all damages occasioned to property owners in consequence of the change of the grade of the street and indemnified the village against all claims for damages so occasioned.
It has been found that the amount of payments made by the claimant pursuant to such agreement was $39,133.39 and that in addition thereto the claimant has paid the village of Waterford $500, the amount of its legal expenses with respect to the matter, and that the claimant has also expended the sum of $25 for the services of an expert witness, aggregating as above stated $39,658.39.
If this work had been done by the state, as contemplated and commanded by the Barge Canal Act, none of these expenditures would have been incurred by the state. Property owners abutting on Second street in the village of Waterford would have had no valid claim against the state for damages caused by change of grade because the sole burden assumed by the state *30with respect to such bridges by the Barge Canal Act was to raise the old bridges or, where necessary, to construct new bridges and the approaches thereto. It is true that by chapter 612 of the Laws of 1918, which became a law on May 11, 1918, the obligation to pay damages so arising was imposed upon or assumed by the state, but the work here in question was performed, and this claim was filed, tried and submitted, long before the enactment of that statute, which requires that a claim for damages under it, which arose prior to its enactment, should be filed within one year after the passage of the act. It was because under previously existing law no valid claim for damages arising out of the change of grades of streets and highways occasioned by raising of the levels of canal bridges existed (Warner v. State of New York, 132 App. Div. 611; affd., 204 N. Y. 682) that the enactment of chapter 612 of the Laws of 1918 was made necessary. In the case at bar the liability of the railroad company to pay these damages did not exist by obligation of law but was created by the agreement of the railroad company with the village of Waterford. The raising of the Waterford bridge and the consequent change of grade of Second street having been because of the command of governmental authority, namely the Barge Canal Act, and not having been for the benefit or convenience of the railroad company or upon its initiative, there was no liability on the part of the railroad company to respond in damages to the property owners because of the change of grade without the agreement between the company and the village of Waterford. Rigney v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 31. Had the state undertaken the performance of this work pursuant to the provisions of the Barge Canal Act, the village of Waterford would not have been able to forbid or to *31interfere with it because the village of Waterford is only a member of the state, existing for the sole and only purpose of performing such governmental functions as may be assigned to it by the state acting through the legislature and has no standing or status whereby it may interfere with or direct or impose conditions upon the state as to the manner in which the state shall administer its governmental functions. Markey v. Queens County, 154 N. Y. 675; County of Albany v. Hooker, 204 id. 1; Laramie County v. Albany County, 92 U. S. 307.
For these reasons it seems clear that judgment for claimant for the amount of the items herein considered is unwarranted.
Claim allowed.
Claim No. 14,398, Waterford bridge.