¶1The State at various points in its brief concedes and both courts below held that the physical change in Central Park Avenue was a “ change of grade ”. The State is clearly liable for damages caused by such a change of grade (Second Class Cities Law, § 99; Highway Law, § 347, subd. 14). The State’s own expert witness, applying the appropriate before-and-after test, testified that claimant’s property was reduced in value $40,000 by reason of what the State did, and $40,000 was the amount allowed.
¶2The only possible question, therefore, is the essentially factual one of whether claimant’s loss was due to the change of grade or to the diminished access to her property. All the Judges below ascribed it to the change of grade. On this record, that was a mere question of fact not open to our review. An affirmance would interfere with no existing rule of law and would certainly be just.
¶3The judgment should be affirmed, with costs.
¶4Judges Dye, Fuld, Van Voorhis and Burke concur with Judge Froessel; Chief Judge Desmond dissents in an opinion in which Judge Foster concurs.
¶5Judgment reversed, etc.