Claimants are the owners of a plot of land located on the northeast corner of Central avenue and Seventy-eighth street in Queens in the city of New York. The property is improved with a one-story brick garage building built in 1924. The grades of Central avenue and of Seventy-eighth street had been established by the city on November 16, 1917, and the building was erected to conform to the existing grade.
Central avenue was eighty feet wide and was one of the main connecting public highways between the borough of Brooklyn and the borough of Queens. It carried traffic going east and west. Seventy-eighth street entered Central avenue from the north but did not cross it. It was a two-way street and carried traffic into Central avenue from the north and away from it to the south.
Pursuant to chapter 677 of the Laws of 1928, the transit commission authorized the elimination of the grade crossing of the Montauk division of the Long Island railroad at Central avenue and Proctor street which was west of the location of claimants’ property. To effect the elimination an underpass was constructed and the center part of Central avenue was depressed. The point of beginning of the depression is about 500 feet to the east of claimants’ east property line. In front of claimants’ premises the difference in elevation is eleven feet, one inch. A stairwell was dug through the public sidewalk on Seventy-eighth street near the southwest corner of claimants’ building and a stairway constructed to afford pedestrians access to a tunnel and thence to a sidewalk on the depressed Central avenue. A marginal road or surface street thirty feet wide, of which twenty feet was for vehicles and ten feet for a pedestrian sidewalk, was constructed in front of claimants’ property at substantially the old grade of Seventy-eighth street, the new road being about six inches lower than the grade of Central avenue as it formerly existed. This marginal road now carries vehicular traffic in a westerly direction only. Directly opposite claimants’ building and on the line of the division between the marginal road and the depressed road a concrete retaining wall projects approximately one foot above the roadway of the marginal street and is surmounted by a concrete guard wall or fence five feet high. The photographs in evidence and the court’s view of the premises establish that this structure interferes with light, air and access to claimants’ property. The claimants’ value expert testified that he took into consideration the changes that have taken place in the street. This is one of the changes.
No portion of claimants’ property was taken. The grade of Seventy-eighth street was not changed. Access to claimants’ property over the marginal road can now be had,from the east. *965One driving on Central avenue in an easterly direction must pass claimants’ property, go to a point east of it and turn back in a westerly direction on the marginal road.
Some describe the alterations made as a “ separation of grades.” Call it what you will, the fact is the grade of Central avenue in front of claimants’ property was changed. The physical aspects are similar to those described in Buffalo Co-operative,. Stove Co. v. State (252 App. Div. 228). If there was existing liability for such a change of grade at the time that chapter 677 of the Laws of 1928 took effect, then, we believe, that by application of the Askey & Hager decision to section 7 thereof, these claimants have a cause of action against the State of New York in the first instance. (Askey & Hager, Inc., v. State, 240 App. Div. 451; affd., 266 N. Y. 587.)
Claimants assert that such a liability did exist by virtue of section 951 of the Greater New York Charter. As their claim is presented de novo a strong argument appears in support of their right to recover against the State. (West 158th St. Garage Corp. v. State, 256 App. Div. 401, 404.) In that case Mr. Justice Hill, presiding in the Third Department, pointed out that recent decisions of the Court of Appeals had fortified claimant’s contention. The same is true here. And neither the reversal of our order reopening the West 158th St. Garage Corp. case because of lack of power and jurisdiction nor the inadvertent statement in the second paragraph of the opinion to the effect that the city raised the grade, can lessen the force of the court’s declaration on the law of liability against the State. The record was clear that the State did the work.
But the defense here argues that to impose liability upon the State it must first be shown that the local governmental subdivision became responsible for the State’s acts. We regard this as too narrow a construction of a statute which sought to preserve to property owners the limited remedies which existed for damages sustained by change of grade.
The point is that a liability existed because the language " but this provision shall not be deemed to create any liability not already existing in law ” (Laws of 1928, chap. 677, § 7) must be construed to mean “ that if there was a remedy available to such injured property owner at the time the act took effect, the State agrees to pay.” (Askey & Hager, Inc., v. State, supra.) It matters not, therefore, that under other provisions of the Greater New York Charter recovery is to be had from an assessment against the owners of property benefited, nor that the charter gives no cause of action against the city proper. (People ex rel. Globe Constr. Co., Inc., v. Ormond, 181 App. Div. 242; People ex rel. Crane v. Hahlo, 228 N. Y. 309, 318.) Whatever liability there was continues and must now be borne by the State.
*966Without close scrutiny it may appear that Lewis v. State (258 N. Y. 568) is an authority holding against recovery herein. But it is to be distinguished because the maps of the improvement showed that a strip of the original grade of Tuckahoe road in the city of Yonkers in front of the Lewis property was to be preserved. Actually what was to be accomplished in the Lewis case was a diversion of the highway, beginning at a point east of the Lewis property, rather than a change of street grade where the property abutted. Although Tuckahoe road was to be blocked off at the west, access to the east over its unaltered surface was to remain, according to the engineer’s plans.
Claimants are entitled to recover damages herein measured by the difference in the fair market value of their property before and after the physical changes were made. Accordingly, an award should be made.
Barrett, P. J., concurs; Greenberg, J., dissents with opinion, under date of December 27, 1939.