
    Margaret Bowen, Resp’t, v. The State of New York, App’lt.
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1.. Board of claims—Appeals from—What court of appeals can consider—Laws 1884, chap. 60, § 6, as amended by Laws 1887, chap. » 507, § 1.
    Where the board, of claims has made an award for damages caused by the negligence of the state, upon an appeal to the court of appeals only questions of law are open to the consideration of the appellate court, except that it may pass upon the insufficiency or excess of damages awarded, Laws 1884, chap. 60, § 6, as amended by Laws 1887, chap. 507, § 1.
    2. Same—When a cause of action against the state established—Laws 1870, chap. 321.
    Under the provisions of Laws 1870, chap 321, the same facts which would establish a cause of action against an individual or corporation will be effectual to establish one against the state in the cases therein provided The state intended to assume the same measure of liability incurred by individuals and corporations engaged in similar enterprises.
    3. ' Same—Administratrix can bring suit—Laws 1870, chap. 321—Code Crv. Pro., § 1902.
    Under the statute, Laws 1870, chap. 321, which opened the door to claims against the state founded upon its negligence, the plaintiff, as administratrix of her deceased husband, has a cause of action against the state, notwithstanding the omission in section 1902, Code Civil Procedure (giving to the administratrix such right), to include such actions against the state.
    
      The Attorney General, for app’lt; Tracy C. Becker, for resp’t.
   Finch, J.

The board of claims awarded the plaintiff $1,-500 as damages for the death of her husband, resulting from the negligence of the state. The attorney-general has appealed from that decision. Under, the acts regulating such appeals, as amended, only questions of law are open to our consideration, except that we may pass upon the insufficiency or excess of the damages awarded. Ho complaint is made in the present case that they exceeded a just amount, and so we are concerned only with such questions of law as are raised in the case. Laws of 1884, chap. 60, § 6; Laws of 1887, chap. 507, § 1.

The appellant argues: First. That the state was not neg ligent and the decedent was, or, at least, was not shown to have been free from negligence contributing to the injury. That is, of course, a question of fact, and can only become a question of law when no evidence given fairly tends to ■establish the controverted fact. That cannot be said in the present case. There was proof tending to show that the decedent, in crossing a bridge over the canal, fell through a broken or defective railing into the water and was drowned; that the defect was obvious and and had existed for a considerable time, and was known to the officers in charge, who often tied up the broken rail, sometimes with twine and sometimes with wire. An inference that the deéedent was free from negligence on his own part was also possible from the facts proved, and while on both branches of the plaintiff’s case there was ground for debate, and even, perhaps, for difference of opinion, we cannot hold, as matter of law, that she failed to establish a cause of action.

The learned attorney-general, however, raises another question. He insists that the plaintiff had no cause of action against the state, because the special statute giving to the administratrix such right omits to include actions against the state. Code of Civil Procedure, § 1902.

That section provides that “the executor or administrator of a decedent who has left him or her surviving a husband, wife or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent if death had not ensued.”

The appellant argues that the right of action here given is only against an individual or corporation, and since the state can only be sued by its, consent (Rexford v. The State, 105 N. Y., 229; 7 N. Y. State Rep., 10), there is no authority for maintaining the action. But the statute which opened the door to claims against the state founded upon its negligence opened it wide enough to admit the plaintiff’s cause of action. The statute of 1870 (chap. 321) not only gave the canal appraisers jurisdiction to hear and determine “all claims against the state of any and all persons and corporations for damages alleged to have been sustained by them from the canals of the state, or from their use and management, or arising from the negligence or conduct of an officer of the state having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals,”—language broad enough in and of itself to cover the damages sustained by the plaintiff and those whom she represents,—but it further ■contained the significant proviso, “but no award shall be - made unless the facts proved shall make out a case which would create a legal liability against the state were the same established in evidence in a court of justice against an individual or corporation.” While the language is somewhat awkward the meaning is clear, and. is that, in the cases provided, the same facts which would establish a cause of action against an individual or corporation shall be effectual to establish one against the state. And we, therefore, said in Sipple v. The State (99 N. Y., 284) that the state intended to assume “ the same measure of liability incurred by individuals and corporations engaged in similar enterprises.” We have seen no reason to become discontented with that conclusion, and it is decisive of the point under consideration.

The award should be affirmed, with costs.

All concur.  