Lawrence v. Village of Mamaroneck

“ Under the settled law of this state damage caused to an abutter by a change of the grade of a, street by the municipal authorities was damnum absque injuria. (Radcliff’s Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y. 195 ; Heiser v. Mayor, etc., of N. Y., 104 N. Y. 68 .) The hardship of this rule, however, was early appreciated and legislation was passed to secure abutters who improved their property on the faith of the established grade of a street from alteration of that grade without compensation. So, in 1883, a statute (Chap. 113) enacted that whenever the grade of any street or highway in any incorporated village should be changed so as to injure or damage the buildings or real property adjoining such highway, the owners thereof might apply to the Supreme Court for the appointment of three commissioners to ascertain and determine their damages, which damages should be a charge on the village, town or other municipality chargeable with the maintenance of the street or highway so altered or changed.”

Chapter 113 of the Laws of 1883 reads as follows:

“ Section 1. Whenever the grade of any street, highway or bridge in any incorporated village in this state shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway so changed or altered, the owner or owners of such building or real estate may apply to the supreme court in the judicial district in which such property is situated for the appointment of three commissioners to ascertain and determine the amount of damage sustained thereby; due notice of such application shall be given to the person or persons having competent authority to make such change or alteration.

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“ § 3. All damages ascertained and determined under the provisions of this act, together with the costs of such proceedings, shall be a charge upon the village, town or other municipality chargeable with the maintenance of the street, highway or bridge so altered or changed. * * * * * * * >>

These provisions have been carried forward into the Village Law (Cons. Laws, ch. 64, § 159, subd. 2), so that from 1883 down to date a village has been liable to an abutter for the damage done by change of grade of the highway, unless the Legislature intended to modify this law by chapter 459 of the Laws of 1929.

The liability of the village does not seem to have been made dependent upon that part of the statute relating to the maintenance of the street. The liability and the payment of damages appear to have been distinct considerations. All damages, it is said, shall be a charge upon the village, town or other municipality chargeable

The claim of the appellant is that the cases which sustained the liability of the village for damages caused through change of grade were based upon the theory or the fact that the village was chargeable with the maintenance of the highway changed. None of the cases establishing the village’s liability considered this the determining factor. (Matter of Torge v. Village of Salamanca, supra; McMullen v. Village of Marlborough, 163 App. Div. 73 ; Matter of Barnes [Cuba Village], 216 N. Y. 646 ; Matter of Moulton [Cuba Village], 216 N. Y. 647 .) From a reference to the Appellate Division decision in these cases against Cuba Village (167 App.1 Div. 953), it will be seen that the attention of the court was. particularly called by the dissenting opinion to the fact that the village was not chargeable with the maintenance of the highway in question, yet the Appellate Division and this court upheld the liability of the village for the damages caused by the change of grade. (See, also, Matter of Dupont [Village of Port Henry], 217 N. Y. 612 .)

At no time was the village ever charged with the full cost and maintenance of State highways within its territory but was only required to pay for their mainte

The appellant claims, however, that in 1929 a change was made in the Village Law by indirection or by implication which not only relieved the villages of this burden but failed to provide any other relief for the abutting owner damaged by change of grade of a State or county highway. We do not understand that chapter 459 of the Laws of 1929, repealing section 172 of the Highway Law, and amending section 170, caused any such change in section 159, subdivision 2, of the Village Law. This amendment relieved the villages of the duty to pay anything toward the cost and maintenance of State and county highways. The maintenance and repair of improved State and county highways in towns and incorporated villages, by chapter 459 of the Laws of 1929, came under the direct supervision and control of the Superintendent of Public Works and he became responsible therefor. The cost of such maintenance and repair is to be borne wholly by the State and to be paid for from moneys appropriated therefor by the Legislature. This did not, however, change, nor was it intended to change, the provisions of section 159 of the Village Law regarding the liability of villages for the change of grade in such highways. True it is that the clause in this section saying that all damages ascertained shall be a charge upon the village, chargeable with the maintenance of the highway so altered or changed, creates some confusion in the law. The village was never chargeable with the whole cost of the maintenance and repair of State and county highways. Perhaps for this reason the clause

A reference to chapter 365 of the Laws of 1931, which added a new subdivision to section 159 of the Village Law, indicates that the Legislature considered the other provisions of section 159 as still in force and effect. In 1932 a bill was introduced in the Assembly “ repealing subdivision two of section 159 of the Village Law, relating to damages sustained in changing the grade of streets, highways and bridges in villages.” (Assembly Bills, 1932, No. 1563, Int. No.11430.) This act was passed in both houses but was vetoed on March 30, 1932, by Governor Roosevelt. If we look for the intention of the Legislature as an interpretation of its acts, we find here a clear indication that, in the enactment of chapter 459 of the Laws of 1929, the Legislature never considered that it had repealed the provisions of section 159 of the Village Law, subdivision 2, or had in any way modified the liability of villages for damage to abutting owners caused by the change of grade in State highways. Until the Legislature by clear and unmistakeable language takes away the relief and remedy which it has afforded for so

The Appellate Division, in Matter of Lawrence, has certified this question:

(1) “Is the village of Mamaroneck, in this case, liable for damages, if any, to the Lawrence property, for a change of grade of a public highway known as the Boston post road, in said village, under section 159, subdivision 2 of the Village Law and the provisions of the Highway Law and Village Law applicable thereto? ”

(2) In Matter of Samuel Cohen, a companion case, the Appellate Division has certified this question: “ Is the first, separate and distinct defense contained in the answer of the village of Mamaroneck herein sufficient in law? ”

This defense referred to raises the question of law which we have above discussed, in that it sets forth the statutes and says that the village of Mamaroneck is no longer liable for maintenance and repair and consequently not liable for change of grade.

The question in the Lawrence case we answer in the affirmative. The question in Matter of Samuel Cohen we answer in the negative, which leads to an affirmance of both of the orders of the Appellate Division.

We may say that the facts have not here been presented as they are not in dispute. The State highway in the village of Mamaroneck, the Boston post road, was elevated, the grade was changed so as to shut off access to the property of abutting owners, all to their damage. They applied under the Village Law for the appointment of commissioners, and the orders making the appointment were affirmed by the Appellate Division, that court, however, certifying the above questions to us.

The order of the Appellate Division in each of these

Pound, Ch. J., Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Ordered accordingly.