p. 240Bartlett v. Village of Tarrytown.(Supreme Court, General Term, Second Department.Headnote
1. Municipal Corporations—Change in Grade op Street.Under Laws N. T. 1883, c. 113, providing that when the grade of any street in any incorporated village shall he changed so as to interfere with the buildings or the use thereof, or when such change shall injure real property, the owner may have a commission appointed to appraise the damages, an owner of land on a street which has been extended may have a commission appointed to assess damages to his land from a change in the grade made after the extension, though such extension was made under a deed from him, which recites that it is for a public road, “ and for no other uses or purposes. ”
It is no objection to an application for such a commission that the street was a public street before the change, and that the village did not fix its grade.
Appeal from special term, Westchester county.
Petition by Eleanor J. Bartlett, for the appointment of commissioners to assess her damages resulting from a change in the grade of a street in the village of Tarrytown. Commissioners were appointed, and the village of Tarry-town appeals.
Argued before Barnard, P. J., and Pratt, J.J. ¡S'. Millard, for appellant. L. T. Yale, for respondent.
The village of Tarrytown, an incorporated village of the state, in 1888 opened John street from its northerly end to Main street. The street before its extension had been a cul-de-sac. The petitioner conveyed to the village the right to extend - John street to Main street. The petitioner owned lands both upon the old and new parts of John street. After the opening of the new portion as a public highway, the village by resolution cut down and changed the surface and level of the street in both the old and new parts, so as to make the plaintiff’s lands from eighteen inches to Seven feet above the grade of the changed street. By chapter 113, Laws 1883, it is provided that when the grade of any street in any incorporated village shall be changed so as to interfere with the buildings or the use thereof, or when such change
p. 241shall injure the real property, the owner may have a commission appointed to appraise the damages sustained. The plaintiff’s case is embraced by the terms of this act. It is no answer to the application for the commission that John street, before the change, was a public street, and that the village did not fix its grade. The village took the street, for the purposes of this act, as it was, and a change in grade thereafter made, causing damages to the landowner, was within the act. The fact that the extension of John street was under a deed from the petitioner has no materiality. The deed was for a public road, “and for no other uses or purposes.” The road once established, the petitioner was to be compensated for a change of grade in the street injurious to her, equally with other owners of land on the street. The order should be affirmed, with costs and disbursements.
Pratt, J., concurs.