Hyperlawhypertext legal database Claim of Ehrsam v. City of Utica 37 A.D. 272

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Claim of Ehrsam v. City of Utica

37 A.D. 272 Court N.Y. App. Div. English

Delivered by Follett, J.:

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In the Matter of the Claim of Johh Ehrsam, Jr., Respondent, against The City of Utica, Appellant, for Damages by Reason of the Change of Grade on Genesee Street at the Crossing of the Erie Canal.

Headnote

A tenant for years is not included in the phrase “ any person claiming that the real estate owned by them.”
A lessee for years is not an owner of real estate within the provisions of chapter 560 of the Laws of 1893, providing that “Any person claiming that the real estate owned by them, or any part thereof,” has been damaged by the change of grade incident to the construction of a bridge over the Erie canal in the city of Utica, may obtain such damages from the city.
Appeal by The City of Utica, pursuant to section 6 of chapter 560' of the Laws of 1893, from an award of commissioners appointed pursuant to said statute, sustaining the claim of John Ehrsam, Jr.
By chapter 341 of the Laws of 1891 it was provided that a new bridge should be constructed in Genesee street in the city of Utica over the Erie canal, at the joint expense of the city and of the State. The act.provided : “LTor shall the work be commenced until the city of Utica shall, in writing, release the state from any liability that may arise or occur from the change in the grade of the approaches to the said bridges.”
This act was amended by chapter 560 of the Laws of 1893, by which it was provided :
“ § 4. Any person claiming that the real estate owned by them, or any part thereof, by any change that may be made in the grade of Genesee street by reason of cutting or lowering said grade, may, at any time within thirty days thereafter, filé with the city clerk a statement of the amount of damages claimed by them. Upon the application of the corporation counsel of the city of Utica, and upon notice of not less than eight days to all persons filing such claims, the Supreme Court, at any special term thereof held in the fifth judicial district of the state of JSTew York, shall, upon such notice, appoint three disinterested freeholders of the city of Utica, as commissioners to estimate and award damages, if any, which any owner of real estate may sustain by reason of change of grade aforesaid and fix the time and place of their first meeting.
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“ § 5. The commissioners shall view the property and may, at their discretion, receive any legal evidence affecting the same. They shall ascertain and award to each owner of real estate such damages, as in their opinion will fairly compensate them for injury occasioned by the change of such grade after deducting the benefits, if any,, received by them.
“ § 6. The report of the commissioners, or a majority of them,, shall be final and shall be filed with the said city clerk within ten days thereafter. Unless an appeal shall be taken to the Supreme Court within thirty days from the filing of said report, the aggregate amount of such awards, if any, shall be a charge on the city of Utica, and shall be included in the next annual tax levy of said city, and the money raised thereby shall be paid to the said claimants, according to the awards made in their cases, respectively.”
The old bridge which was superseded by the new one, constructed pursuant to said acts, was a fixed structure elevated high enough above the canal to admit of the passage of boats, and approaches were constructed on the north and south sides thereof which raised the grade of Genesee street on both sides of the old bridge above the natural level of the street. This old bridge had been in existence, or one like it, since the Erie canal was constructed. The Devereux block is on the south side of the Erie canal and on the west side of Genesee street and opposite to the south approach to said old bridge. The Devereux block is occupied by many tenants for stores and offices. The new bridge authorized by said acts was begun November 15, 1893, and completed May 2,1894. The claimant, during the period of construction, was a lessee of a store, at an annual rental of $800, in the Devereux block, known as No. 138 Genesee street, under a lease dated March 5,1891, for one year with the privilege of renting it for three years, which was extended until the 1st day of May, 1895, at which time it was further extended.
January 8, 1895, the claimant filed a claim against the city in which he asserted that the rental value of his store was greatly diminished by the blocking of the street and sidewalk during the construction of the new bridge, interrupting travel in front of his store, and greatly diminished his business as a dealer in hats, caps and gentlemen’s furnishing goods, for which purpose the store was
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■occupied. The commissioners sustained in part his contention and awarded $400 damages in a report separately stating the facts found and the conclusions of law. The city filed exceptions to the award, ■and has appealed therefrom.
James Coupe, for the appellant.
Thomas S. Jones, for the respondent.

Words and terms having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in its statutes unless a different meaning is unmistakably intended. (Perkins v. Smith, 116 N. Y. 441 ; Stephenson v. Higginson, 3 H. L. Cas. 638; McCool v. Smith, 1 Black. 459 ; Clark v. City of Utica, 18 Barb. 451 ; Cruger v. The Hudson River R. R. Co., 12 N. Y. 190 , 198; Wynehamer v. People, 13 id. 378, 427; End. Interp. Stat. 5, § 3; 23 Am. & Eng. Ency. of Law, 324. "The term “ real estate ” has a precise and well-settled meaning in the .jurisprudence of this State, and the interest of a tenant of realty under a lease for years is not real estate, but is a chattel real, and is mot liable to sale on an execution. (1 R. S. 722, § 5; 2 R. S. [Banks’ 9th ed.] 1789, § 5 ; chap. 547, Laws of 1896, § 23 ; Lewis v. Thompson, 3 App. Div. 329 ; State Trust Co. v. Casino Co., 5 id. 381, 387 ; Despard v. Churchill, 53 N. Y. 192 ; Smith v. Ferris, 6 Hun, 553 ; Burr v. Stenton, 52 Barb. 377 ; affd., 43 N. Y. 462 ; The Mayor of N. Y. v. Mabie, 13 id. 151, 158.) The interest of a lessee under ■ such a lease does not descend in case of his death to his heirs, but .goes to his personal representative. “ The terms real estate ’ and lands,’ as used in this chapter, shall be construed as co-extensive in ■¿meaning with lands, tenements and hereditaments.” (1 R. S. 750, § 10; 2 R. S. [Banks’ 9th ed.] 1822, § 10; chap. 547, Laws of 1896, § 1; 5 R. S. [Banks’ 9th ed.] 3544, § 1.) The term real property includes real estate, lands, tenements and hereditaments, corporeal ■and incorporeal.” (Chap. 677, Laws of 1892; 1 R. S. [Banks’ 9th ed.] 110, § 3, The Statutory Construction Law.) “ This chapter ■* * * is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law, indicate that a different meaning or application was intended from

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that required to be given by this chapter.” (Chap. 677, Laws of 1892, § 1; 1 R: S. [Banks’ 9th ed.] 110, § 1.) The Statutory Construction Law was in force when chapter 560 of the Laws of 1893, under which the claim was made was enacted. Leases for years are not real estate. (Westervelt v. The People, 20 Wend. 416 , affg. S. C., sub nom. People ex rel. Sears v. Westervelt, 17 id. 673.) Such was the rule • at common law. (2 Black. Com. 16.) ' For definitions of the term “ real property,” as used in the statutes of this State, see 1 Revised Statutes (Banks’ 9th ed.), Ill, note to section 4. There is no language in chapter 560 of the Laws of 1893 broad enough to bring a lessee for years within the term “ owner of real estate ” as used in that chapter. Persons having chattel interests in real estate affected" by a change of grade of Genesee street, are not within the terms o f the act, and it seems to me that it was the clear intention of the Legislature simply to authorize the owners of abutting real estate damaged by the change of grade to recover their damages of the city. Such real estate would necessarily be permanently affected by the change- of grade, and the owner put to expense to adjust the property to the new grade of the street, and it was not intended to give a claim for damages to tenants occupying rooms or stores, for short periods, in the real estate affected.

It is well settled by a long line of cases that a municipality of this State is not liable to an owner or tenant of realty abutting on a street for damages caused by changing the grade of the street unless there is a statute imposing-a liability. (Radcliff’s Executors v. The Mayor, etc., 4 N. Y. 195 ; Conklin v. N. Y., O. & W. Ry. Co., 102 id. 107; Matter of Grade Crossing Commissioners, 154 id. 550 ; 6 Am. & Eng. Ency. of Law [1st ed.], 548, and cases cited.)

Ho matter how great the damages sustained by the claimant may be, he is without remedy unless he brings his case within the terms of the statute, which, I think, he is unable to do.

The Matter of Grade Crossing Commissioners ( 154 N. Y. 550 ) does not sustain the contention of the claimant. The statute under which damages were awarded in that case is much broader than the statute under consideration. The statute provides that the “ owners or persons interested ” in property which should be injured by the change of grade might recover their damages, but no such language

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or any language equivalent to it is found in the acts relating to the Genesee street bridge.

Having reached this conclusion, it is unnecessary to consider whether the claimant filed his claim within thirty days, the time limited by the 4th section of the act.

The statute does not provide that costs may be awarded for the proceedings before the commissioners, or on an appeal therefrom, and though this is a special proceeding in which the court may grant or withhold costs, I think that under the circumstances the claimant, having suffered damages which he cannot recover, and the statute not having been construed, the award should be reversed and the claim dismissed, without costs to either party.

All concurred.

Award reversed and claim dismissed, without costs to either party.

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