(concurring). I concur in the result reached by Judge Ryan in the above claims. However, I disagree with that portion of the opinion wherein it is stated in effect that it was incumbent upon the State to plead the contributory negligence of the decedent. A claim against the State may be filed and heard and determined only in the method provided by statute. The State can only be sued when it consents to be sued and then only in accordance with the terms of the statute permitting such suit.
“ The State cannot be sued without its consent and it has the right, in authorizing the maintenance of proceedings for the recovery of claims against it, to impose such terms and conditions and to prescribe such procedure as its legislative body shall deem proper. The conditions imposed become jurisdictional facts and determine the status and right of the litigant.” (Gates v. State of New York, 128 N. Y. 221, 228.)
The procedural requirements are contained in the Court of Claims Act. (Laws of 1920, chap. 922, as amd., Laws of 1939, chap. 860.) There is no requirement in the statute that the State shall plead *376to or answer the allegations of the claim. If it must plead contributory negligence of a decedent, it must also plead the Statute of Limitations, fraud, release, payment, illegality, etc., when involved in the controversy. (Civ. Prac. Act, § 242.) Claims against the State can only be presented to and heard by the Court of Claims. The court is authorized to establish rules for its government and the regulation of its practice. (Court of Claims Act, § 14, now § 9, subd. 9.) That section, as it read when these claims were filed and tried, provided that the practice therein shall be the same as in the Supreme Court except as otherwise provided in the rules and regulations or the Civil Practice Act. Rule 13 of the Rules of the Court of Claims reads as follows: “ The State is not required to answer a claim and all allegations in the claim are treated as denied.” This rule was adopted in conformity with the powers expressly conferred on the court by said section 14 of the act, namely, that the practice may be regulated by rules or, in the alternative, by the provisions of the Civil Practice Act. If the State must formally answer the allegations of the claim, then queries naturally arise as to who is to answer and what must the answer contain and must it be verified and when is it to be filed and served and where. On these questions the statute is silent. The claimant is bound to produce such legal evidence as will sustain his claim but such legal evidence does not include proof of failure of contributory negligence upon the part of the decedent. The State must establish such negligence. (Frate v. State of New York, 245 App. Div. 442.) In the absence of express statutory provision that the State shall answer, and in view of the rule of the Court of Claims, I am satisfied that no such .pleading is required upon the part of the State.