70 N.Y.S. 630 | N.Y. App. Div. | 1901
This is a proceeding ■ under the provisions of section 159 of the Village Law (Chap. 414, Laws of 1897), and was instituted for the purpose of procuring the appointment of commissioners to assess the damages alleged to have been sustained by reason of a change of grade in First street, village of Forth Pelham, in front of the premises owned by the petitioner. The petition sets forth the jurisdictional facts which were conceded by the defendant, and the learned court, upon a sharp conflict of evidence, made findings of fact and reached conclusions of law entitling the petitioner to the commissioners, and from the judgment and order entered the village of Forth Pelham appeals.
It appears from the pleadings and the evidence that on July 13, 1898, the village of Forth Pelham entered into a general contract with Smith Brothers for the grading of such streets and sidewalks as should thereafter be designated by the board of trustees, and for the furnishing and laying of a course of bluestone flagging along each sidewalk where designated by said board. The work on First street, in front of the petitioner’s premises, was done under the provisions of this contract, and it is conceded that there was a distinct change in grade, the defense being that the petitioner has failed to bring himself within the provisions of the statute by neglecting to give the notice prescribed in the section referred to within the time limited. This is practically the only question involved in this appeal, and it is unnecessary to deal with the facts, except as they bear upon this question. In the year 1897 the village of Forth Pelham had caused a profile map of First street to be made by Messrs. Ford & Beach, which was apparently accepted by the board of trustees on August 19,1897, but it does not appear that this profile was ever adopted as the grade of First street, or that the work subsequently done was in conformity to this map. In the same month that the village entered into the contract with Smith Brothers, John G. Van Horn, the village engineer, made a profile map, showing what was proposed to be done under the contract in #said First street, and the engineer was informally directed to have the contractors proceed with the work in accordance with this profile. The learned court at Special Term has found, and the findings are supported by the evidence, “ that thereafter, and
The language of the statute is that “ A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected.” .While the word “ effected ” is somewhat inexact, we are of opinion that it is here used in the sense of “ completed,” and that the change of grade for which the injured party may claim damages is not effected until it is completed; until the village has taken some action to indicate that it has closed the work in connection with the improvement under way. The best evidence of this intention on the part of the village would seem to be the final grading and the placing of a permanent sidewalk; until that time the petitioner, in the absence of other evidence, would not be bound to assume that the change of grade contemplated had been effected. Used in one sense, a change of grade might be said to have been effected every timé a wagon load of dirt was removed or brought upon the highway, but the change contemplated by the statute requires more than this; it has in view the official and authoritative as well as the physical change of grade. It can hardly be questioned that if the village of Worth Pelham had intended to change the grade five feet in front of the petitioner’s premises, and had only accomplished three feet of the cut when work was suspended, a notice of claim for damages would be premature based upon this cut, unless he had notice of a change of intention. A property owner is not bound to know whether a public improvement, involving a scientific knowledge of grades, has been accomplished when the work is suspended, unless there are facts and circumstances which would bring notice to a man of ordinary intelligence. The village of Worth Pelham, having left this improvement in an incomplete condition, concededly requiring some alteration in the grade for the purpose of laying the sidewalk, is hardly in a position to set up the claim that the change of grade was effected, within the contemplation of the statute, when the work was suspended in the fall of 1898.
The question involved in Matter of Bissell (57 App. Div. 61) has no relation to the facts involved in this case. In that Case the grade had been established; the work done merely conformed" the highway to the official grade, and we held that the change in the elevation of the sidewalk did not constitute a change of grade of the street within the contemplation of the law. Here it is conceded that a change of the grade has taken place, and the appointment of commissioners is opposed because it is alleged that the petitioner has failed to file his claim within sixty days of the effecting of the change
The judgment and order appealed' from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.