
    Tomasetti Construction Co., Inc., Respondent, v. Long Island Rail Road Company, Appellant.
   Defendant appeals from an order denying its motion to dismiss the complaint upon the ground that the Supreme Court has not jurisdiction of« the subject matter of the action or of the defendant. The contract sued upon was made between the plaintiff and the defendant pursuant to an order of the Transit Commission of the State of New York and was for grade crossing elimination work within the State of New York. It appears without dispute that the contract was made subject to the provisions of chapter 677 of the Laws of 1928 and chapter 289 of the Laws of 1939, and that plaintiff agreed that the railroad corporation would not be obligated to make payments on the contract until after the receipt by it of moneys from the Comptroller of the State of New York. There are other recitals in the contract by which the interests of the Transit Commission and of the State of New York are recognized. The State of New York has assumed full liability for the cost of elimination of grade crossings and, on the facts in this case, the defendant railroad corporation was acting merely as an agency of the State in the performance of the work. The cause of action, if any, lies only against the State of New York; and to determine the controversy alleged in the complaint, the Court of Claims has exclusive jurisdiction. (Breen v. Mortgage Commission, 285 N. Y. 425; Holler v. New York Central B. B. Co., 282 N. Y. 188.) Order reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Close, P. J., Hagarty, Cars-well, Adel and Aldrich, JJ., concur.  