In re Church of Our Lady of Mercy

10 N.Y.S. 683 | N.Y. Sup. Ct. | 1890

Pratt, J.

The amount of the award is abundantly sustained by the evidence. Several witnesses, well qualified to judge, testified in favor of a larger sum, and the award is rather below the amount fixed by most of the witnesses. The appellant argues that, as there does not appear to be any record evidence that the grade of one of the streets interfered with had ever been legally established, no damages could be legally allowed for the change. One answer to this objection is that it does not appear that any such damage entered into the award. But we also think that the change of grade contemplated by the act of 1883, and for which damages are given to a property owner, refers to an existing grade, though it may not have been established by resolution. In other words, a grade may be established by general use.

The appellants argue with great force that the law of 1883, being a general law, inconsistent with the local village charter previously enacted, will not be allowed to have such an effect as practically to repeal the local law. But the question must be regarded as settled, so far as this court can do it, by the Case of Stack, 3 N. Y. Supp. 231. All the objections now urged were then passed upon by the court. We are still of opinion that the village is liable in damages for the injury shown, and that the petitioner pursued the proper course to obtain relief. Judgment affirmed, with costs.