134 N.Y.S. 1025 | N.Y. App. Div. | 1912
These two actions were tried together as one, and the separate appeals from the judgments dismissing the complaints come before this court on one record. The plaintiffs and appellants were the owners of separate pieces of improved real property situate on Meserole avenue, in the borough of Brooklyn. In 1905 the city of New York repaved that street, and in the,progress of said work it changed the physical grade of the highway by raising the actual grade several feet in front of the premises of the plaintiffs, with a result that considerable damage was caused to the plaintiffs’ properties. For this damage they sought separate recoveries, and on the trial of their actions their complaints were dismissed.
The only question involved on this appeal is purely one of law. It appears that the grade of Meserole avenue was established originally in 1854 and that the street was paved in 1874 according to the established grade. On the property of the respective plaintiffs houses were built some time previous to 1883, and with reference to the then existing grade. In 1895 the common council of the city of Brooklyn adopted an ordinance or resolution to regrade Meserole avenue according to a
It is contended that the general provisions of the then Brooklyn charter which appear in section 9 of title 2 of that act, relating to the powers of the common council, apply to this' situation. This last-cited title of the act applies generally to the powers, duties and procedure of the common council. Section 9 thereof provides that when an ordinance or resolution has been adopted, it should be transmitted to the mayor, who, if he approves it, “shall sign it,” and, if he disapprove it, shall return it with his objections. If he disapprove, then a procedure is prescribed whereby the common council may then by a two-thirds vote of the entire elected body repass the same and it shall take effect as a law. The section further provides as follows: “And if such ordinance or resolution shall not be returned by the mayor within ten days after he has received it, it shall become a law in like manner as if he had signed it.” It is conceded that the resolution had not been returned by the
It follows that the judgments should be reversed and new trials granted, costs to abide the event.
Jenks, P. J., Thomas, Woodward and Bicai, JJ., concurred.
In each case judgment reversed and new trial granted, costs to abide the event.