67 N.Y.S. 962 | N.Y. App. Div. | 1901
The petitioner alleges that “ the village of Larchmont is, and was at the times hereinafter mentioned,' a municipal corporation,” and that “ section 159 of the General Tillage Law, being chapter 414 of the Laws of 1897 * * * is, and at all the times mentioned herein was, applicable to the village of Larchmont; ” that the said village has exclusive control of the streets; that he is a resident of New Rochelle, and is the owner of certain premises situate in the
The issues joined were, therefore, aside from the ownership of the premises, whether any change of grade had been effected in Addison avenue at the place and time alleged; and, if so, whether by the due authority of the village. Upon the trial the learned court at Special Term found as a matter of fact that “ during the months of Nóvember and December, 1899, the said village of Larehmont changed the grade of the said Addison avenue in front of the premises above described, which change consisted in the raising of the roadbed of said Addison avenue, which change ■ of grade damaged and injuriously affected the land above described and the use thereof.” As a conclusion of law the learned court held “ that the change of grade as aforesaid in the street known as Addison avenue in front of the petitioner’s premises is in' law a change of grade as; contemplated by the statute,” and that “ the petitioner is entitled to have three commissioners appointed to determine the compensation to which he is entitled by reason of the said change of grade.’* The defendant excepted to this finding of fact and the conclusions of law, and upon this appeal we are called upon to determine whether the court has erred in its disposition of the matter.
The ordinary meaning of the term grade is the amount of difference between grade line and a level or horizontal line, and to grade a street is to bring the surface of the street to the grade line. (14 Am. & Eng. Ency. of Law [2d ed,], 1108, and authorities there cited.)
Alonzo Reynolds, a witness sworn in behalf of the petitioner, testified that he had been employed as an assistant in surveying for a period of six and a half years, and that he had subsequently been employed by the defendant as a police officer ; that he resigned as such officer on the 15th day of November, 1899; that he was familiar with the location of the premises of the petitioner; that he saw the work going on under the contractor, Michael Decicco; that he was familiar with the grade of Addison avenue as compared with the lot of the petitioner; that the lot, in comparison with the street, was practically level; that the situation was changed by the filling in front of the premises; that “ I cannot say exactly how much the street was changed in front of this lot; approximately a foot and a half. I saw the street in front of this lot after the work was done. I did not measure it with a tape measure; I measured it with my eye; I observed a foot and a half.” Being pressed for a definite answer, the witness testified that the street was raised a foot. On
Francis J. Clarke, á dealer in real estate, sworn in behalf of the petitioner, testified that he knew the parties; that he was familiar with the street and with the location of the petitioner’s premises, and with real estate values in' the village of Larchmont.; that in reference to Addison avenue, on his observation, he did not think “the road was its original width. There used to be a couple of.' planks down for a walk; they were about one foot from the level of the lot. At the present time the road has been raised about one foot and ten inches.” Asked whether this was “in the middle of the road or on the side,” witness answered “ on the side.” Asked how it had been changed in the middle, the witness replied : “ It has a slight, crown. I could not tell you that without measuring; it has. been raised somewhat in the middle; formerly it slanted down. I mean to say that the original two planks that were there, were level with the road; they were, on the side of the road.” Asked “ what was done that you saw in December. last ? ” the witness replied : “ The planks were taken away and the whole business was • raised;.both the road and what.had been a vacant place under the planks; ” that the whole side of the road was raised; that the middle of the road was raised; that the side of the road from the planks out to the property line was raised a foot or ten inches; that the middle of the road was raised from ten inches to a .foot. . On cross-examination it appeared that the witness was the agent of the petitioner to sell this, property, and he insisted that the grade was changed by being raised one foot. 1 This is the evidence of the petitioner upon this point, which is the only proof important to be considered here.
Michael Decicco testified that he did some contract work on the streets of the village of Larchmont, under the contract in evidence. Asked if he did any grading whatever in Addison avenue in front of the Bissell lot, he replied : “Not that I know of, with the exception of the sewer; I laid a sewer in that street.” Asked if he •changed the grade of the street by raising or lowering it, the witness answered : “No, sir; the only change that we made we had a deep cut and some surplus stuff, and there was a place on the side •of Addison avenue where there was a plank walk and there was a very bad place in there. It was a bad place, and by authority of the board of trustees we got an order to widen out that piece; I could not tell you whether it raised the side of the road above the grade of the road in the centre. We had so much stuff left from the sewer there on the middle of the road, and we graded down to the old grade, and probably there was a lot of stuff left there.” On cross-examination this witness testified that he filled the side of the road in front of this property to the extent of a foot and a half or a little over.
If we assume that the grade of Addison avenue had been established at the time the work of constructing the sewer upon the
■ The judgment appealed from should be reversed, and the order appointing commissioners should be vacated.
All concurred, except Sewell, J., taking no part.
Judgment reversed, with costs, and the order appointing commissioners vacated.