I agree with my colleague that the claim must be dismissed. I am unable to concur in his opinion.
I agree with so much of his opinion as reiterates the well-settled doctrine that a railroad company has the right to elevate or depress its tracks without making compensation to abutting property owners.
As to damages which may be sustained by reason of the change of grade in the public highway the authority for dismissal of this claim is Lewis v. State (258 N. Y. 568).
These claimants are, unfortunately, in that class of owners of property lying outside of certain cities and of villages for whom no relief has been provided by statute. To this predicament we called attention in Knights v. State (161 Misc. 552; affd., 251 App. Div. 781; leave to appeal denied, Id. 881; 275 N. Y. 650).
I am unable to concur in Judge Greenberg’s opinion because he finds in the Askey & Hager decision elements which I am unable to discern. He states: “ It is apparent that in the Askey & Hager case the liability of the State in the first instance was the liability which came into being by acts of the Buffalo Grade Crossing Commission, an agency of the city of Buffalo, in changing the grade of Colvin street prior to the time the Public Service Commission made its order for the elimination.”
Judge Greenberg apparently believes that if no physical work had been done before the order of the Public Service Commission was entered the State would not have been held liable in the Askey & Hager case. I take no such view. If the prior physical act was the essential factor in the Askey & Hager case then what becomes of all the subsequent and dependent decisions in cases wherein the State itself first ordered then performed? Among them are Matter of Atherton v. Village of Allegany (244 App. Div. 890; affd., 270 N. Y. 525); Matter of Trustees of First Methodist Episcopal Church of Whitehall (248 App. Div. 644; affd., 272 N. Y. 562).
In each of those cases the briefs in the Court of Appeals specifically called attention to the fact that in the Askey & Hager case the cily of Buffalo had commenced the work before the enactment of chapter 844 of the Laws of 1926. Yet the Atherton case was decided on authority of the Askey & Hager case and the Whitehall case was *774decided on authority of the Atherton case, and no distinction was made because of the sequence of events in the underlying case.
There is also the Knights case {supra), wherein we followed the Askey & Hager decision. We were unanimously affirmed without opinion in the Fourth Department and leave to appeal was denied by that department and by the Court of Appeals.
Moreover, in the Syracuse cases the argument that the Askey & Hager case had some peculiar distinction by reason of the work having been commenced and substantially completed prior to the entry of the order of the Public Service Commission under authority of chapter 844 of the Laws of 1926 was again presented to the appellate courts, but without effect. (See briefs of Attorney-General on appeal in the following cases: Champion Oil Co., Inc., v. State, 161 Misc. 143; affd., 251 App. Div. 781; leave to appeal denied, Id. 881; 275 N. Y. 649; Caldwell v. Ward Brass Co. v. State, 161 Misc. 147; affd., 251 App. Div. 781; affd., 277 N. Y. 547.)
It would seem to be sufficient in this case to grant the motion to dismiss upon the authority of Lewis v. State (supra), but I have been unable to convince my colleague of this. And since he has insisted upon a discussion of other authorities and an interpretation of them with which I cannot agree, I have, at his suggestion, expressed hereinabove the reasons for my disagreement.
Dated, July 11,1939.