8 N.Y.S. 739 | N.Y. Sup. Ct. | 1890
This is an appeal from an award for damages allowed the plaintiff by reason of a change of grade in a street fronting upon the plaintiff’s land. No questions of irregularity in the appointment or in the proceedings of the commissioners are raised. The principal question is whether or not the damages are excessive. With this subject courts cannot interfere, unless the commissioners infringe some rule of law in the course of their proceedings, or fix the damages at an amount so grossly excessive as to indicate passion, prejudice, or fraud.
The counsel for the defendant very ingeniously contends that this case does not fall within the statute allowing damages for a change of grade, for the reason that a grade had never been officially fixed for John street, and hence could not be changed. We think, however, that this argument is too fine for practical use. There are many streets in all cities where the "grade has never been established by resolution, but has become established by long user. The natural grade may suit well enough for years, but'finally the authorities may see fit to change it. Now, can it well be said that the statute was not intended to apply to such cases? The statute is one giving a remedy, and it ought to be liberally construed. People v. Lacombe, 99 N. Y. 49, 1 N. E. Rep. 599. It was the intention of the legislature to afford damages to persons who were injured by. changing the grade in front of their premises, and the law does not restrict the damages to streets the grade of which had been previously established by resolution, and no good reason seems apparent why there should be any such restriction. A party might be damaged just as seriously, so that the reason of the passage of such a law might apply as strongly, as in the case of altering a grade in a street which had been previoulv fixed by resolution of the authorities.
We also think this question should have been raised when the motion was made for the appointment of commissioners, and that the decision of that motion concludes the defendant upon this proceeding.
Neither do we think that a giving of the deed by the petitioner cuts off her remedy for damages, under the statute. The deed only carried right to use the land in the street, and the changing the grade was an entirely distinct matter. The damages are for injury to petitioner’s adjoining land, and arose some time after the deed was given.
