(dissenting). I must respectfully dissent from the determination of my esteemed colleagues to dismiss this claim upon the motion made by the Attorney-General. To begin with, the claim here presented is not in the nature of a demand for compensation or pension by the dependents of a deceased member of the militia. On the contrary, it is a cause of action granted by the Decedent Estate Law, section 130 (formerly Code Civ. Proc. § 1902), and fully recognized in respect to the State as a defendant by the jurisdictional provision of the Court of Claims Act found in section 12 of the Court of Claims Act. Section 12, of course, did not waive the immunity of the State from liability in a death claim any more than it did in a claim for personal injuries. That waiver had to come about by other legislative enactment. (Smith v. State, 227 N. Y. 405 [1920]. Also Smith v. State, 154 Misc. 849, 851 [second trial, 1934]; affd., 243 App. Div. 682; affd., 268 N. Y. 551. See, contra, Burge v. State, 242 App. Div. 721.) Until the passage of chapter 467 of the Laws of 1929, a special enabling act providing the necessary waiver of immunity was required in all tort cases, unless such waiver appeared in some general statute, such as the Canal Law, section 47, or the Highway Law, section 176 (now § 58). But the 1929 legislation, which became known as Court of Claims Act, section 12-a, was a general enabling act, and was thus construed by the Court of Appeals. I quote from Judge O’Brien in Jackson v. State (261 N. Y. 134, 137, 138): “ The State thus provides for four things which shall result from the infliction of personal injuries due to the negligence of its officers and employees while acting as such officers or employees. It waives immunity from liability, it consents to have its liability determined in accordance with the rules of law applicable to individuals, it assumes liability and it confers jurisdiction upon the Court of Claims to hear and determine such claims of liability. The provisions of section 12 of the Court of Claims Act (Laws of 1920, ch. 922, for*346merly Code Civ. Proc. § 264) must, in view of the decisions, be deemed too narrow to cover claims of this character, but by section 12-a (as added by Laws of 1929, ch. 467) those provisions must be regarded as extended, supplemented and enlarged. The deficiencies pointed out in Smith v. State (227 N. Y. 405) have been supplied. Section 12-a goes beyond the point of a mere waiver of immunity from suit. It waives immunity not only from suit but also from liability. It is the positive and specific enactment, clearly expressed, which was suggested by Smith v. State (supra). By section 12 the defense of sovereignty in an action was removed. Suit was allowed but liability was held not to have been waived. By section 12-a liability, when proved by the rules of law applicable to individuals, has been affirmatively assumed and jurisdiction to determine whether such a liability has been proved is conferred upon the Court of Claims. In the assumption of liability and the creation of a remedy to enforce a liability, heretofore absent by reason of the sovereignty of the tort-feasor, the sovereign has not generously dispensed charity. Section 12-a constitutes a recognition and acknowledgment of a moral duty demanded by the principles of equity and justice. It includes only claims which appear to the judicial mind and conscience to be such as the1 Legislature may declare to be affected by a moral obligation and which the State should satisfy. (Farrington v. State, 248 N. Y. 112, 115.) It declares that no longer will the State use the mantle of sovereignty to protect itself from such consequences as follow negligent acts of individuals. It admits that in such negligence cases the sovereign ought to and promises that in future it will voluntarily discharge its moral obligations in the same manner as the citizen is forced to perform a duty which courts and legislatures have so long held, as to him, to be a legal liability. It transforms an unenforceable moral obligation into an actionable legal right and applies to the State the rule respondeat superior.”
That this waiver of immunity from liability applies in death cases has been recognized by the courts time and time again. The right to maintain an action for damages where death is caused by the wrongful act, neglect or default of the State is established. It is given to the administrator who sues on behalf of the next of kin. (Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367, 370.) Here these appear to be the father and mother, although four brothers and sisters survived. (Matter of Patrone v. United States Trucking Corp., 236 App. Div. 531; affd., 262 N. Y. 540.)
Shall the right to maintain such action be denied in this case because section 220 of the Military Law provides for a pension for this decedent’s widow, minor children or dependent mother if he left such surviving?
*347We have recognized the right of a member of the National Guard who survives his personal injuries to sue the State rather than apply for a pension in the Schmohl and Spence cases cited by Judge Gibbs and in many other similar cases, unreported. We have recognized the right of an administrator of a deceased member of the National Guard to sue the State in the Dicicco case, also cited by Judge Gibbs, and in many other similar cases, unreported.
It is true that such cases were filed under special enabling acts. However, three cases come to mind where there were no special enabling acts in each of which this court has distinctly ruled that claims for personal injuries or for damages for death due to a wrongful act were properly prosecuted under section 12-a of the Court of Claims Act. Each of these cases was dismissed upon the merits and no opinion was published. But the ruling on the specific question in each case is a matter of record in this court. The claims are: Feldman, Claim No. 23393; Massa, as administrator, Claim No. 22379*; and Carmody, as administrator, Claim No. 23319, affirmed, 245 App. Div. 800; 463 (case 4) leave to appeal denied, 269 N. Y. 679.
In the Feldman case, a motion by the Attorney-General similar to the motion made herein was denied upon the authority of Jackson v. State (supra) (See Feldman record S. M. pp. 12, 13) and a request by the Attorney-General that this court find that it had no jurisdiction of the claim was refused. In the Massa case, upon a request by the claimant this court found as a conclusion of law as follows: “ That the claim is within the provisions of letter, scope and intent of section 12-a of the Court of Claims Act.” In the Carmody case there was a finding that the claim was “ within the jurisdiction of this court.” Therefore, the determination to grant this motion is directly contrary to previous rulings of this court.
The decisions in Lewis v. State (197 App. Div. 712) and in McAuliffe v. State (107 N. Y. 553) are clearly to be distinguished. The Lewis case was dismissed because of the contributory negligence of the claimant and the lack of moral obligation upon the State. Judge Kellogg’s comment, cited by my colleague, Judge Ackerson, is obiter dictum. McAuliffe had no waiver of immunity granted to him on the part of the Legislature, and, while Judge Smith referred to the pension provision of the Military Law, the dismissal really rested on the absence of a waiver of the State’s immunity from liability.
The force of the holding in Jackson v. State (supra) that section 12-a of the Court of Claims Act was a general enabling act in tort cases is in no whit diminished by the recent decision of the Court *348of Appeals in Green v. State (278 N. Y. 15; affg. 251 App. Div. 108), which reversed our decision reported in 160 Misc. 398. What the Green case holds is that section 510 of the Penal Law suspends, during the term of his sentence, the civil right of a State prison inmate to prosecute a cause of action. These administrators are under no legal disability to sue. Rather they are authorized so to do by the order of the Surrogate’s Court.
All able-bodied male citizens between the ages of eighteen and forty-five years who are residents of this State constitute the militia. (Military Law, § 1.) The National Guard of the State consists of certain designated officers and “ such persons as are enlisted and commissioned therein.” (Military Law, § 30.)
For the purposes of the application of the Workmen’s Compensation Law “ employer ” is defined by section 2, subdivision 3, thereof, “ employee ” by section 2, subdivision 4, and “ employment ” by section 2, subdivision 5. “ Hazardous employments ” are defined by section 3. Judge Gibbs points out that chapter 658 of the Laws of 1924 brought under the protection of the Workmen’s Compensation Law those engaged in any employment by the State, notwithstanding the definitions of the terms as contained in the above-numbered sections and subdivisions. (Workmen’s Comp. Law, § 3, group 16.) But to stretch this statute into an authorization for the hearing and determination of compensation claims by members of the National Guard and their dependents under the Workmen’s Compensation Law requires a theory of statutory construction which I am unable to follow, the consequences of which, if applied, I would be unwilling to estimate.
It is true that section 12-a refers to the torts of “ the officers and employees ” of the State. It is true that in so far as this claim alleges that the intestate’s death was due to the negligence of a fellow member of the National Guard, it refers to one who was employed with decedent in the same undertaking. It is, likewise, true that in previous decisions we have referred to the negligence of enlisted men of the National Guard as the negligence of “ employees ” of the State. But it is because they were at the same time the State’s agents that we have required the State to answer, respondeat superior. The real meaning of section 12-a is that the State waives its immunity from liability by reason of the torts of its agents. I quote from Judge Lotjghban in Paige v. State (269 N. Y. 352, 356): “ There is no misuse of language in saying that the State employed the institution. * * * If the word ‘ agent ’ were found in section 12-a of the Court of Claims Act, would it be held that this case was outside the State’s assumption of liability? The terms ‘ agent ’ and ‘ employee ’ have been used interchangeably *349in the cases that dealt with State immunity from liability for tort. * * * In Jackson v. State (261 N. Y. 134, 138) it was said: ‘ Section 12-a constitutes a recognition and acknowledgment of a moral duty demanded by the principles of equity and justice.’ In that spirit, we accept the construction of the section here adopted by the courts below.”
For the foregoing reasons and with all respect I am unable to defer to the opinion of my two colleagues, with whose sound judgment I seldom find myself in disagreement. In this case, however, I reach the conclusion that the State’s motion to dismiss on the grounds stated should be denied. In so doing I do not pass on the merits of the claim, to which subject I have given no thought or consideration.
Affd. 254 App. Div. 928.