(dissenting). Claimants herein seek to recover for damages to their property caused by a change of grade of Central avenue in the borough of Queens, city of New York. The facts have been succinctly stated in Judge Ryan’s opinion, but I do not concur in the decision made by my learned colleagues that liability was imposed upon the State of New York for a change of grade affecting property located in the city of New York where said change of grade had been made by the State pursuant to chapter 677 of the Laws of 1928.
I am in accord with the statement in the opinion, “ 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.)” But the application of the Askey & Hager case (supra) and the decision in Knights v. State (161 Misc. 147; affd., 251 App. Div. 781; affd., 275 N. Y. 650) are limited by the provisions contained in the act creating the Buffalo grade crossing commission, and likewise section 159 of the Village Law.
The Askey & Hager case arose in the city of Buffalo. The order for the elimination involved therein had originally been made by the Buffalo grade crossing and terminal station commission, created by chapter 231 of che Laws of 1923, which act had been in effect prior to the General Grade Crossing Elimination Acts. The act which created the Buffalo grade crossing commission provided *967for damages for change of grade; it likewise provided that the Buffalo grade crossing commission was an agency of the city of Buffalo, and the liability for the acts of the commission was placed upon the city of Buffalo.
The work of the elimination involved in the Askey & Hager case (supra) which was being performed by the city of Buffalo, had progressed to a point where the grade had actually been changed by the city of Buffalo. At this stage of the proceedings the Public Service Commission made an order pursuant to chapter 844 of the Laws of 1926, wherein the State took over the work of the elimination. At this time the damage had actually been sustained Dy the claimant and the claimant had a cause of action against the city of Buffalo for the damage which it had caused. It was this damage for which the State became liable in the first instance pursuant to chapter 844 of the Laws of 1926 and for which the claimant recovered against the State.
Likewise, in the Knights case (supra) there was an existing liability against the village by reason of the provisions of section 159 of the Village Law. Subdivision 2 of that section provided that the village would be liable for change of grade made in the village irrespective of who made the change and pursuant to the provisions of this act a liability was placed upon the village for the acts of the State. It was this liability for which the State became liable in the first instance. So under these decisions I am in accord with the quoted statement made by my colleagues.
However, I must differ with that portion of the opinion which reads, “ 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 1 (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.” (Italics supplied.) If section 951 of the Greater New York Charter gave the claimant no cause of action against the city proper, there could be no existing liability for which the State could become liable in the first instance under chapter 677 of the Laws of 1928, for under this section the State became liable in the first instance for only such damage as could be recovered against the city.
The statute imposing liability for change of grade must always be strictly construed. I am of the opinion that had the Legis*968lature intended to give claimant the right to recover damages herein, it would have done so in certain terms and not indirectly or inferentially. The court cannot substitute its interpretation of the language of the statute where the statute is clear and specific.
One important difference between the statute involved in the Askey & Hager case (supra) and the present claim, must be borne in mind in deciding this matter. Chapter 844 of the Laws of 1926, which was the section involved in the Askey & Hager case (supra), read as follows: “ If the work of such elimination causes damage to property not acquired as above provided, the State shall be liable therefor in the first instance, but this provision shall not be deemed to create any cause of action which would not otherwise exist.” It was this section which the court interpreted to mean that where a remedy existed it could not be destroyed by the acts of the State. However, the language involved in chapter 677 of the Laws of 1928 differs considerably from the language in the statute involved in the Askey & Hager case (supra). Section 7 of chapter 677 of the Laws of 1928 reads as follows: “ If the work of such elimination causes damage to property not acquired as above provided, the State shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law.” The test that must be applied in the instant claim is not whether there was a cause of action, but, rather, was there a liability existing at law. Accordingly, if section 951 of the Greater New York Charter created no liability, or, as stated in the decision of my colleagues, no cause of action against the city for the work performed by the State, there could be no liability existing at law for which the State could become liable in the first instance. Any liability the State assumed would have to be a liability placed on the city of New York by the acts of the State in the construction of the elimination.
The controlling feature in the Askey & Hager case (supra) and in Buffalo Co-operative Stove Co. v. State (252 App. Div. 228) was the fact that the city of Buffalo actually had ordered and participated in the work. This is clearly emphasized in the Buffalo Co-operative Stove Co. case (supra). On page 231 of the opinion the court states, “ The Buffalo Grade. Crossing and Terminal Station Commission was created by chapter 231 of the Laws of 1923, on consolidation of the Terminal Station Commission and the Grade Crossing Commissioners, as an agency of the city of Buffalo to effect the elimination of grade crossings within that city and continued as the agent of the city until the effective date of chapter 679 of the Laws of 1928, when it became the agent of the State of New York. It directed the alteration of the grade in Amherst street in connection with the elimination of these crossings as the agent of the city and *969the city was liable for damages thereby caused, by reason of the provisions of section 367 of the Buffalo City Charter.” (Italics supplied.)
The efficacy of the dictum in the opinion of the court in West 158th Street Garage Corp. v. State (256 App. Div. 401) as a controlling authority in the instant claim, has been destroyed because the facts were not clearly brought home to the court in that particular case. The court, in its opinion, in reciting the facts, states that the work of the elimination had been performed by the city. This is evidently an error for in the West 158th Street Garage Carp, case the work had been performed by the State, and if the appellate court proceeded on the assumption that the work had been performed by the city, the facts would clearly be within the scope of the Askey & Hager and the Buffalo Co-operative cases (supra), for then there would be a liability on the city. In the West 158th Street Garage Corp. case, and in the instant case, the city had no part in either ordering the elimination or in performing the work thereof, and hence, could not be made liable by reason of some act of its own. The liability would have to be found in the construction of section 951 of the Greater New York Charter, but this section has been repeatedly interpreted to impose no liability on the city where the work of changing the grade is performed by some agency other than the' city. (Matter of Bergmann, N. Y. L. J. Sept. 26, 1936, p. 867; Matter of Johnson, Id. Jan. 5, 1939, p. 51; Id. Dec. 9, 1938, p. 2053.)
Furthermore, an award cannot be sustained herein upon the theory that the fence protecting the underpass interfered with the light, air and access to the claimant’s property. The structure erected herein differs from the structure described in Buffalo Co-operative Stove Co. v. State (supra). The structure in this case was erected solely for the use and protection of the traveling public, and hence any damages sustained thereby were not recoverable. (Sauer v. City of New York, 206 U. S. 536.) The structure described in Buffalo Co-operative Stove Co. v. State (supra) was designed solely for the use and benefit of the railroad, and hence the type of structure-upon which a recovery could be predicated under the decision in. Storey v. New York Elevated R. R. Co. (90 N. Y. 122). Likewise,1 all of the experts in the instant claim agreed that the fence was not' the cause of damage to the property, but that the resultant loss in, value was caused solely by the diversion of traffic through the underpass, and, accordingly, there is no evidence before the court upon which an award could be based for any damages arising out of the construction of the fence and retaining wall if such damages were legally recoverable.
Accordingly, I dissent from the opinion herein and vote for a dismissal of the claim.