
    Red Apple Rest, Inc., et al., Appellants, v. J. Burch McMorran, Superintendent of Public Works of the State of New York, Respondent.
    Argued January 8, 1963;
    decided January 23, 1963.
    
      
      John B. Davison and Rose M. Fredrickson for appellants.
    I. The Appellate Division erred in drawing inferences of fact from the facts stipulated and in finding other facts. (Manhattan Stor. & Warehouse Co. v. Movers & Warehousemen’s Assn. of Greater N. Y., 289 N. Y. 82.) II. Defendant had no authority to eréct railings limiting plaintiffs ’ access to and from their properties and Eoute 17. (Schulman v. People, 10 N Y 2d 249; State ex rel. Veys v. Superior Court, 33 Wn. [2d] 638; State ex rel. Troy v. Superior Court, 37 Wn. [2d] 660; People v. LaMacchia, 41 Col. 2d 738; Robinson v. State of New York, 3 A D 2d 326; Griefer v. County of Sullivan, 246 App. Div. 385, 273 N. Y. 515; Dormann v. State of New York, 4 A D 2d 979, 4 N Y 2d 676; Schneider v. City of Rochester, 160 N. Y. 165.) III. A grant of authority to do what defendant did would have to meet the tests of constitutionality and no statute does so. (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of City of Utica v. Water Pollution Control Bd., 5 N Y 2d 164; Matter of Appropriation of Easement for Highway Purposes, 93 Ohio App. 179, 158 Ohio St. 285; People v. Sack, 202 Misc. 571.) IV. Even if it be determined that defendant had authority to erect railings on State-owned or properly appropriated lands and thus make this area of Eoute 17 a limited access highway, possession of plaintiffs’ property was acquired illegally. (Adirondack Ry. Co. v. New York State, 176 U. S. 335; Tuscarora Nation of Indians v. Power Auth., 257 F. 2d 885; Weitzner v. Stichman, 271 App. Div. 255, 296 N. Y. 907.)
    
      Lóuis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
    I. Eoute 17, a conventional State highway, was properly reconstructed to improve the highway and to improve safety conditions thereon. Eoute 17, at the locus in quo, is an integral part of the State’s highway system; it is not a limited-access highway. (Hedrick v. Graham, 245 N. C. 249; Arkansas State Highway Comm. v. Union Planters Nat. Bank, 231 Ark. 907; Schulman v. People, 10 N Y 2d 249.) II. Appellants’ easement, as abutters, of access to and from Eoute 17, is subordinate to the public rights in and use of the highway. (Callanan v. Gilman, 107 N. Y. 360; Deshong v. City of New York, 176 N. Y. 475; Kane v. New York El. R. R. Co., 125 N. Y. 164; Sauer v. City of New York, 180 N. Y. 27, 206 U. S. 536; Perlmutter v. Greene, 259 N. Y. 327; State Highway Dept. v. Strickland, 213 Ga. 785; Iowa State Highway Comm. v. Smith, 248 Iowa 869.) III. In any event, the construction of the guardrails within the highway limits was a proper exercise of the police power in conjunction with the power of eminent domain. (Boyce Motor Lines v. State of New York, 280 App. Div. 693, 306 N. Y. 801; Jewhurst v. City of Syracuse, 108 N. Y. 303; Ivory v. Town of Deerpark, 116 N. Y. 476; Dougherty v. Village of Horseheads, 159 N. Y. 154; Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362; Cities Serv. Oil Co. v. City of New York, 5 N Y 2d 110; Gilsey Bldgs. v. Incorporated Vil. of Great Neck Plaza, 170 Misc. 945, 258 App. Div. 901; Segal v. Village of Scarsdale, 17 Misc 2d 27; New York State Thruway Auth. v. Ashley Motor Court, 10 N Y 2d 151.) IV. The improvement of the highway was a proper exercise of the State’s power of eminent domain. (Matter of City of New York [Ely Ave.], 217 N. Y. 45; Dormann v. State of New York, 4 A D 2d 979, 4 N Y 2d 676.) V. Neither the appropriations herein nor the erection of the guardrails violates the due process or equal protection clauses of the State or Federal Constitutions. (Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342; Sauer v. City of New York, 180 N. Y. 27, 206 U. S. 536.) VI. Procedurally, the State effectively vested title to appellants’ parcels delineated and described on the appropriation maps in accordance with section 30 of the Highway Law. The in rem method of condemnation therein set forth has been judicially approved. (American Woolen Co. v. State of New York, 195 App. Div. 698; Weismantle v. State of New York, 210 App. Div. 608; Rochford v. State of New York, 245 App. Div. 794; Rizzo v. State of New York, 202 Misc. 439.) VII. The action should be dismissed because (a) it has been rendered moot by the filing of claims in the Court of Claims, and (b) the action is essentially one for an injunction against the State of New York and the court has no jurisdiction of the subject matter. (Metropolitan Trust Co. v. Tax Comrs., 220 N. Y. 344; Hanrahan v. Terminal Sta. Comm., 206 N. Y. 494; Robeson v. Acheson, 198 F. 2d 985; Matter of Gross v. Weinfeld, 174 Misc. 1086; Grand Jurors of Worcester 
      
      County v. Commissioner of Corporations & Taxation, 329 Mass. 89; Kirk v. Crystal, 118 App. Div. 32, 193 N. Y. 622; Taussig v. Hart, 49 N. Y. 301; Lewis v. Mott, 36 N. Y. 394; Morris v. Rexford, 18 N. Y. 552; Benz v. New York State Thruway Auth., 9 N Y 2d 486, 369 U. S. 147; Easley v. New York State Thruway Auth., 1 N Y 2d 374; Psaty v. Duryea, 306 N. Y. 413.)
   Per Curiam.

In this case, it is argued by appellants, by permission and upon an agreed statement of facts, that the State, acting through the Superintendent of Public Works, was not authorized to erect guardrails in front of a portion of appellants’ premises which abut upon a State highway, known as Route 17, in the vicinity of Southfields, Orange County, Few York. We think, to the contrary, that under the Highway Law, and under the police power, and to effectuate a reasonably safe channelling of traffic, the State had a right to erect upon the property appropriated the guardrails in question. The guardrails, as erected, did not create a nonaccess highway or bar access to the premises in question but left ample room for ingress and egress.

While the issue raised herein might have been reached by a proceeding under article 78 of the Civil Practice Act, the Appellate Division nevertheless had jurisdiction to entertain the issue raised in such a submission.

The judgment should be affirmed, without costs.

Chief Judge Desmond and Judges Dye, Fuld, Van Vooriiis, Burke, Foster and Scileppi concur.

Judgment affirmed.  