In re Smiddy — 47 N.Y. St. Rep. 409

Majority

p. 409

In the Matter of the Application of Alicia Smiddy. In the Matter of the Application of James Grogan et al. In the Matter of the Application of Bridget Mullen et al. In the Matter of the Application of Andrew Chrystie. In the Matter of the Application of Thomas R. Fisher et al. In the Matter of the Application of Robert C. Fisher. In the Matter of the Application of Alicia Smiddy and Ellen Ryan. In the Matter of the Application of Maria Jewell.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Villages—Charge of grade of street—Statutes.

The special acts of 1888 and 1889 creating a special system of sewerage for the village of New Rochelle, and authorizing the commissioners of drainage to change the grade of its streets, do not repeal the provisions of the general act of 1883 in relation to special damages, and property owners affected by a change of grade made by such commissioners are entitled to proceed under the general act to have their damages ascertained.

Appeal by the village of Hew Bochelle from order in the above entitled proceedings, appointing commissioners to ascertain the damages sustained by the petitioners by a change of grade of a street in such village.

W. T. Emmet and John J. Crennan, for app’lt; Martin J. Keogh, for resp’ts.

—The village of New Rochelle was incorporated by act of the legislature, chap. 249, Laws of 1864. The village was made a separate road district under the control of the village authorities. By chap. 113, Laws of 1883, all incorporated villages were made liable for damages to real property adjoining any highway occasioned by a change of grade. By chap. 311, Laws of 1888, the legislature created a special system of sewerage for the village, and by chap. 201, Laws of 1889, amended it so that the commissioners of drainage were empow

p. 410

ered to change the grade of streets (§ 9) and to make payment of the damages to piivate property occasioned thereby. The village-was directed to issue its bonds to defray the expense of the construction of the sewers and drains and all other expenses, not exceeding $2,750. All other expenses were to be paid by general-tax on the village property. Sec. 23. The act of 1889 does not provide any mode of assessing the damages from change of grade. The papers are silent whether or not any bonds have been issued, and whether or not the amount authorized was sufficient to pay' all costs and expenses. Neither of the two acts in relation to-special damages repeals the general act of 1883, which did provide a method of ascertaining the damage in such cases. The special acts did not either in terms or by implication repeal the general act. By this act alone the petitioner could have her damages assessed.

The village pays under either the general or special act. The special acts do not take away the power of the village over its streets generally. The village is still liable to maintain its streets, and the petitioner has the right to the order asked for, whether the change of grade be made by its trustees or by the commissioners of drainage. These commissioners are but a special department of the municipal government, and the damages are chargeable upon the village chargeable with the maintenance of the street.

The order should therefore be affirmed, with costs and disbursements.

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