Coffey v. State

265 A.D. 889 | N.Y. App. Div. | 1942

Hill, P. J., Bliss, Schenck and Foster, JJ., concur; Heffernan, J. dissents in a memorandum. Heffernan, J., (dissenting), I dissent and vote to reverse that part of the award from which the State has appealed. The claim arises out of the elevation of the tracks of the Erie Railroad Company on Railroad avenue in the city of Elmira. This work was being done by the State in the course of a grade crossing elimination project. The property of respondents has a frontage of 105 feet on Railroad avenue. During the progress of the work the roadbed of the street was closed to vehicular traffic. The court below has found, and we are bound by that on this appeal, that during the progress of the work the sidewalks were open to passage and repassage by pedestrians. There is no claim that the work was unreasonably or unnecessarily prolonged. Likewise there is no proof of any diminution in the value of respondents’ property. Inconvenience, expense or lack of business occasioned to respondents by the temporary obstruction of a public highway made necessary by a public improvement furnishes no basis for cause of action against the State. The State had a perfect right to temporarily close this highway during the construction of the improvement and any damage which respondents may have suffered is damnum absque injuria.