Majority
p. 646In the Matter of the Application of Maria C. Barnes, Respondent, for the Appointment of Commissioners to Ascertain the Damage to Her Property Caused by Change of Grade of West Main Street in Cuba Village, Appellant. (Argued September 29, 1915; decided October 19, 1915.)
Headnote
Matter of Barnes, 167 App. Div. 953 , affirmed.Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 27, 1915, which affirmed an order of Special Term appointing change of grade damage commissioners.
The following questions were certified: “1. Is the service of notice of this application upon ‘ the person or persons having competent authority to make the change of grade,’ as specified in subdivision 2 of section 159 of the Village Law, a condition precedent to maintaining this proceeding against the village ? 2. If so, does the tenth finding of fact of the referee state a sufficient- service of
p. 647
such notice % 3. Is the village in this case liable for the change of grade effected in the construction of a state highway upon its street under subdivision 2 of section 159 of the Village Law ? ”
J. C. Leggett for appellant.
Walter N. Renwick for respondent.
Order affirmed, with costs; first and third questions certified answered in the affirmative; second question not answered; no opinion.
Concur: Willard Bartlett, Ch. J., Chase, Collin, CUDDEBACK, HOGAN, SEABURY and POUND, JJ„