Opinion
January 11, 1911.
Henry Donnelly, for the appellant.
Dana L. Jewell, for the respondent.
The petitioner and respondent upon this appeal seeks to recover damages to his premises in changing the grade of a street upon which the premises front. The proceeding is brought under section 159 of the Village Law (Gen. Laws, chap. 21 [Laws of 1897, chap. 414], as amd. by Laws of 1901, chap. 68; revised in Consol. Laws, chap. 64; Laws of 1909, chap. 64.)
At the time the grade was changed and the proceedings instituted the village of North Olean was in existence, and the street in question was one of the streets of that village. By chapter 369 of the Laws of 1908 the village of North Olean was merged in the city of Olean, its territory included within the bounds of the city, and all the liabilities of the village imposed upon the city. The city now contests the claim of the petitioner.
The change of grade seems to have been occasioned by the paving of the street, but the trial judge finds, and the evidence seems to support his conclusion, that the change was not a correction of irregularities existing in the grade before the street was paved, but was a change of the general grade.
It is now contended that because the petitioner joined in the petition for paving the street he is estopped from claiming damages for changing the grade. I think not. At the time the petition for paving was made and presented to the trustees of the village the plans therefor had not been made, and the trial judge finds that the petitioner was told by the trustees that the construction of the pavement would not cause any appreciable change in the grade of the street that would damage his property, and that he signed the petition relying upon that statement. Moreover, it does not appear that the paving of the street could not have been done without making so great a change in the grade as was made, although it is not at all improbable that the best interests of the village as a whole required the cutting down of the street and change of grade.
Section 159 of the Village Law empowers a village to change the grade of a street, but provides that: "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."
And it further provides that a claim for damages may be presented within sixty days after such change of grade is effected. It permits the board of trustees to compromise the claim, or if the claim is not compromised an application may be made for the appointment of commissioners, as was done in this case. Other provisions relating to the procedure are contained in the act, but they have no relation to the question involved upon this appeal.
There is evidence to sustain the finding that the change in the grade injuriously affected the premises, but in view of some of the testimony upon the question of damages, it may be proper to suggest that in determining that question the statute requires the commissioners to make an allowance for the benefits, if any, derived by the claimant from the improvement.
The point is made on behalf of the appellant city that the claim was not presented within sixty days after the change of grade was effected. The determination of that question depends upon whether the time for the presentation of the claim commenced to run immediately after the street was cut down, or after the brick had been laid and the improvement completed. Until the brick were laid and the improvement completed, the grade could be changed. The cutting down of the street and the laying of the pavement was one entire piece of work — that of paving the street — and I think the change of grade was effected when the work was completed; and so it was held in Phipps v. Village of North Pelham ( 61 App. Div. 442).
The order should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.