151 N.Y.S. 146 | N.Y. App. Div. | 1915
The appeals in this proceeding challenge the correctness and legality of the awards of compensation to the several respondents whose real property is deemed to be affected by the change of grade of Sycamore street and Walden avenue at or near the Hew York Central and Hudson River Railroad Belt Line in the city of Buffalo, which change of grade has been made by authority of chapter 345 of the Laws of 1888 and its several amendments. The commissioners received testimony as to the supposed damage to the lands of the respondents by reason of the change in the grade of the railroad upon its own right of way and have included such damages in their awards, together with the consequent loss of branch or switch tracks. Since the report of the commissioners was made and confirmed, the Court of Appeals has held that damages cannot be awarded for such change in the grade of the railroad. (Matter of Grade Crossing Comrs. of Buffalo, 209 N. Y. 139.) In view of this decision, it is manifest that it was error for the commissioners to receive the evidence as to the effect of the change of the railroad grade upon respondents’ property and to award damages on that account. We are also of opinion that in the decision referred to it has been held that although awards for damages due to change of the railroad grade had been previously sustained by that court in Matter of Grade Crossing Comrs. (59 App. Div. 498; affd., without opinion, 168 N. Y. 659), still no rule of property was affected by the ovérruling of such former decision, and that following what we understand to be the later decision of that court above referred to, we must hold that no rule of property prevents the application in this case of the rule of dam