Ehrsam v. City of Utica

Black, 459 ; Clarke v. City of Utica, 18 Barb. 451 ; Cruger v. Railroad Co., 12 N. Y. 190 , 198; Wynehamer v. People, 13 N. Y. 378 , 427; End. Interp. St. 553; 23 Am. & Eng. Enc. 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 not liable to sale on an execution. 1 Rev. St. p. 722, § 5; 2 Rev. St. (Banks’ 9th Ed.) p. 1789; Laws 1896, c. 547; Lewis v. Thompson, 3 App. Div. 329 , 38 N. Y. Supp. 316 ; State Trust Co. v. Casino Co., 5 App. Div. 381 , 387, 39 N. Y. Supp. 258 ; Despard v. Churchill, 53 N. Y. 192 ; Smith v. Ferris, 6 Hun, 553 ; Burr v. Stenton, 52 Barb. 377 , affirmed 43 N. Y. 462 ; Mayor, etc., v. Mabie, 13 N. Y. 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 Rev. St. p. 750, § 10; 2 Rev. St. (Banks’ 9th Ed.) p. 1822, § 10; Laws 1896, c. 547, § 1; 5 Rev. St. (Banks’ 9th Ed.) p. 3544, § 1. “The term ‘real property’ includes real estate, lands, tenements and hereditaments, corporeal and incorporeal.” Laws 1892, c. 677; 1 Rev. St. (Banks’ 9th Ed.) p. 110, § 3 (“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 that required to be given by this chapter.” Laws 1892, c. 677, § 1; 1 Rev. St. (Banks’ 9th Ed.) p. 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. People, 20 Wend. 416 , affirming Id., 17 Wend. 674 . Such was the rule at common law. 2 BI. Comm. 16. For definitions of the term “real property,” as used in the statutes of this state, see 1 Rev. St. (Banks’ 9th Ed.) p. 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 of 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 Ex’rs v. City of Brooklyn, 4 N. Y. 195 ; Conklin v. Railway Co., 102 N. Y. 107 , 6 N. E. 663 ; In re Grade-Crossing Com’rs, 154 N. Y. 550 , 49 N.

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. In re Grade-Grossing Com’rs, 154 N. Y. 550 , 49 N. E. 127 , 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, 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 30 days,—the time limited by the fourth 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 concur.