Opinion
May 9, 1917.
Nicholas G. Powers, for the appellant.
Miller Williams [ Seward A. Miller of counsel], for the respondent.
That relator is entitled to damages consequent upon the change of grade of Pleasant street by virtue of section 99 of the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55) applicable to Utica, and section 92 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], as amd. by Laws of 1913, chap. 744), is settled in principle by several decisions. (See Matter of Torge v. Village of Salamanca, 176 N.Y. 324; Matter of Melenbacker v. Village of Salamanca, 188 id. 370; Matter of Dupont, 217 id. 612; Matter of Grade Crossing Comrs., 154 id. 550; People ex rel. Dole v. Town of Hamburg, 58 Misc. Rep. 643; 127 App. Div. 948; affd., 193 N.Y. 614, on opinion of HAIGHT, J., in Smith v. Boston Albany R.R. Co., 181 id. 132; People ex rel. Dawson v. Duffey, 177 App. Div. 949, on authority of People ex rel. Dole v. Town of Hamburg.)
We are of opinion, however, that appellant, the commissioner of public works, by the express terms of section 92 of the Railroad Law, must, before instituting condemnation proceedings to acquire relator's easements, seek to acquire the same by purchase. It is only in case he is unable to effect such purchase that he may proceed to condemnation.
The order appealed from should, therefore, be modified so as to require appellant to acquire relator's easements by purchase, if he can do so upon terms satisfactory to the city and the railroad company, and if unable to do so, then to proceed by condemnation. As so modified, the order should be affirmed, without costs.
All concurred.
Order modified in accordance with opinion and as so modified affirmed, without costs of this appeal to either party.