Majority
p. 272Eleanor J. Bartlett, Resp’t, v. The Village of Tarrytown, App’lt. (Supreme Court, General Term, Second Department, Filed May, 1889.)
Headnote
1. Municipal cobpobations—Change in gbade op stbeet—Laws 1883, CHAP. 113.An owner of land on a street in an incorporated village may have a commission appointed to assess damages to his land from a change in the grade made after an extension of the street, 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."
3. Same—What no answeb to application.
It is no answer to the application for a commission that the street, before the change, was a public street, and that the village did not fix its grade.
Appeal from an order of the special term, Westchester county, appointing commissioners to assess damages for the change of grade of a street in the village of Tarrytown.
J. S. Millard, for app’lt; L. T. Yale, for resp’t.
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 the 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
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the changed street. By chapter 113, Laws of 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 shall 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 land owner, 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; Dykman, J., not sitting.