Opinion
January 29, 1915.
William J. Fallon, for the appellant.
J. Addison Young [ William S. Beers with him on the brief], for the respondents.
The defendant is a village. Its authorities changed the grade of a street. The respondents, the owners of a vacant lot adjacent to the street, claimed damages from such change of grade, alleging the change injuriously affected their land. They presented their verified claim to the board of trustees of the village. The board having failed to agree with them as to the amount of damages within the statutory time, they applied to the Supreme Court for the appointment of three commissioners to determine the compensation to which they are entitled. The court, by its order, appointed the commissioners, and from that order the appeal is taken.
The statute under which the petitioners moved is subdivision 1 of section 159 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64). The pertinent part of subdivision 1 reads: "If a village has exclusive control and jurisdiction of a street or bridge therein, it may change the grade thereof. If such change of grade shall injuriously affect any building or land adjacent thereto, or the use thereof, the change of grade, to the extent of the damage resulting therefrom, shall be deemed the taking of such adjacent property for a public use."
The force and scope of the statute and the requirements exacted from one who invokes its provisions have been settled. ( Comesky v. Village of Suffern, 179 N.Y. 393.)
The evidence supports the finding that the plaintiffs' verified claim was seasonably presented and that their land was injuriously affected. We will discuss the remaining point raised by the appellant.
The appellant, assailing the order, asserts that section 159 of the Village Law ( supra) does not give the right to compensation for a change of grade injuriously affecting a vacant lot. We think there is nothing in the ordinary meaning of the words used, or in the grammatical arrangement, or in the peculiar nature of the subject of the legislation, which excludes unimproved land from the purview of the statute. We cannot approve the determination in Lester v. Village of Blaisdell (137 N.Y. Supp. 491, 493).
The order should be affirmed, with costs.
JENKS, P.J., THOMAS, CARR and PUTNAM, JJ., concurred.
Order affirmed, with costs.