In re Stack — 21 N.Y. St. Rep. 953

Majority

p. 953

Matter of the Application of Catharine Stack for Appointment of Commission of Appraisal.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Municipal corporations—Liability to abutting owner por change op GRADE OP STREET.

Under Laws 1883, chapter 113, making villages liable to abutting owners for damages resulting from a change in the grade of a street, if the change is made by a railroad with the authority and by the permission of the village, toe village is liable to the abutting owner as if it had directly made the change itself.

Appeal from an order of the Westchester special term appointing commissioners to ascertain and determine the amount of damages sustained by Catharine Stack by reason of the change of grade of Westchester avenue in the village of Portchester.

M. J. Keogh, for petitioner; Close & Robertson, for app’lts.

According to the general rule of legislation the village of Portchester has the exclusive supervision and control of the streets and highways within the-corporate limits. Chapter 818, Laws 1868, title 5, section 1.

The New York and New Haven Railroad was permitted to lay its tracks in this state by chapter 195, Laws 1846. The village of Portchester was not then incorporated, and the railroad company was subjected to the obligation to. restore a highway cut or intersection.

The road was built before the village existed, and, once-built, the power to change the grade in the village ceased without the consent of the village authorities. This follows from the grant of the exclusive power over the highways by the charter. The grant was subject to the prior-grant to the New York and New Haven Railroad Company. The railroad company applied to the village to* change the grade of one of its streets. Permission was granted and such change of grade was made as injured the petitioner’s abutting property. Until the passage of chapter 113, Laws of 1883,* such change of grade was legal, and did not involve an action for damages at the instance of the land owner. By this act in villages, damages were given to abutting owners where the municipality changed the grade.

Under this act the petitioner asks for a commission according to its terms to assess her damages, and the sole-question raised is whether the authority to change the-grade given to the New Haven railroad was such an act, that the petitioner can claim her damages as if the village had directly made the change itself. There seems to be no-1 reason why the provisions of the act do not apply to the plaintiff’s case. She is an abutting owner. She is injured by a change of grade. The change of grade was permitted' by the village. It was ordered because public safety makes, it desirable. The fact that the railroad company paid the expense and did the work in accordance with the plan has no relevancy as to the petitioner. The village method of changing her grade was followed out, and the petitioner was thereby injured. Without the order of the village the-act would have been a trespass and the action responsible for all damages done. Uline v. The New York Central, etc., R. R., 101 N. Y., 98 .

With the consent of the trustees the company are not liable (same case).

The order appealed from should- be affirmed, with costs-

Pratt, J., concurs; Dykman, J., not sitting.