Comesky v. Village of Suffern

Independently of the Tillage Laiv (Laws 1897, ch. 414, § 159) the respondent possessed no right to recover damages caused by the change of grade complained-of. There was no encroachment upon or actual interference with his premises, and the improvement ivas made for the benefit of the public and in a proper manner. Under these circumstances, in the absence of any statute providing for compensation, remote or consequential damages arising from the change of grade could not be recovered. (Radcliff’s Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Fries v. N. Y. & H. R. R. Co., 169 N. Y. 282 , 283, and cases cited.)

Thus the respondent’s rights and remedies are dependent upon the provisions of section 159, which provides: “If a village lias exclusive control and jurisdiction of a street or bridge therein, it may change the grade thereof. If such change of grade shall injuriously affect any building or land adjacent thereto, or the use thereof, the change of grade to the extent of the damage resulting therefrom, shall be deemed the taking of such adjacent property for a public use. A person claiming damages from such change of grade must present

Although there were several interesting and important questions discussed by counsel, still, with our view of the case, the only one we deem it necessary to consider is whether the order appointing commissioners to assess the damages claimed by the respondent was authorized, or whether it was void for want of jurisdiction. As we have already seen, this proceeding was wholly statutory. Both the right sought to be enforced and the remedy provided for its enforcement were created by the same section of the statute. By the provisions of that section certain facts and conditions must precede the right to recover any compensation, and must be established and determined before the remedy becomes available, so far as the appointment of commissioners was concerned. As the right claimed was for compensation for damages sustained by change of grade, until the fact that there had been a change of grade, resulting in damages to the respondent, was determined by the court, it possessed no authority or jurisdiction to appoint commissioners to assess them. In other words, before the court had any jurisdiction to grant an order appointing commissioners, the fact that there had been such change of grade, followed by damages to the respondent, and that there had been a presentation to the board of a verified claim therefor within

An examination of this section of the statute discloses that tiie establishment of several facts must precede the jurisdiction of a court to appoint commissioners: 1. The village must have exclusive control and jurisdiction of the streets; 2. It must have changed the grade thereof; 3. Such change must have injuriously affected the respondent’s building or the land adjacent thereto, or the use thereof; and, 4. The person claiming damages must have presented to the board a verified claim therefor within sixty days after such change was effected. In this case, while the petition of the respondent alleged facts which, if established and determined in his favor, would have entitled him to an order appointing commissioners, yet, an answer was interposed which admitted some of the facts necessary to be established and denied others. It denied that there was any material or substantial change of grade, denied that the respondent’s premises or the use thereof were in juriously affected thereby, denied that his claim for damages was presented within sixty days after the change of grade was-effected, and then alleged that the only work done by the village upon said streets consisted in causing the inequalities of said streets to conform to an already established and existing grade and laying sidewalks thereon. It further alleged that the work mentioned in the petition was done with the knowledge, consent and approval of the petitioner, and that he both expressly and by implication waived any such claim as was set forth therein. It is obvious that if the allegations of the answer, together with its denials, had been established and found in the appellant’s favor, the respondent would not have been entitled to an order appointing such commissioners. But the court, upon the petition and notice of motion, with no proof or determination of the facts alleged therein and denied by the answer, granted an order appointing three commissioners to determine the compensation to which the petitioner claimed to be entitled by reason of the alleged change of grade, and to report their determination to the court. Thus

The conclusion that the facts entitling- the respondent to damages were jurisdictional and must be established before the court was justified in granting the order appointing commissioners is fully sustained in Matter of Borup ( 89 App. Div. 183 ), and plainly recognized in Matter of Greer ( 39 App. Div. 22 ).

Nor does the fact that the court before which this application was made was a court of general jurisdiction, aid the respondent, in sustaining this proceeding, as it is to be observed that it does not fall within the ordinary proceedings of a court of common law, and, hence, the jurisdiction of the court is special aud limited, wholly dependent upon the statute, and no presumption can be indulged in favoring .that particular-jurisdiction. In cases of that character, where the rights and remedies are new and conferred only by statute, the statute must be strictly pursued, whatever jurisdiction the court may possess. ( Warren v. Union Bank of Rochester, 157 N. Y. 259 , 276.)

Presumptions indulged in support of the judgments of superior courts of general jurisdiction are limited to jurisdiction over persons within their territorial limits, and over proceedings which are in accordance with the course of the common law. (Galpin v. Page, 18 Wall. 350 .)

We are of the opinion that the court acquired no jurisdic

Cullen, Cli. J., Cray, Bartlett, Haight, Vann and Werner, JJ., concur.

Order reversed, etc.