123 N.E. 68 | NY | 1919
This was a condemnation proceeding instituted to acquire title to a small piece of land belonging to the defendant Joseph A. Walsh. The land to be acquired was a part of a larger tract. The commissioners of appraisal duly made their report fixing the value of the land taken and the damage done to the remainder *72 of the tract. This report was confirmed at the Special Term. On appeal, the Appellate Division modified the report by striking out altogether the damages awarded to the defendant.
This left the defendant without any compensation at all for the taking of his property or for his damages. Clearly, the determination of the court at the Appellate Division was erroneous as the respondents' counsel admitted on the argument.
If the Appellate Division was dissatisfied with the report of the commissioners it should have directed a new appraisal.
Inasmuch as there will be a rehearing in this proceeding, it appears proper to say a word on the question of damages.
The general rule in this state is that in the absence of some statute the owner of property abutting on a street cannot claim damages for lawful change of grade in the highway. (Conklin v.N.Y., O. W. Ry. Co.,
The appellant bases his demand for damages for a change of grade on the rule laid down in South Buffalo Ry. Co. v.Kirkover (
The order appealed from should be modified by remitting the proceeding to the Supreme Court, with instructions to provide for a new appraisal before new commissioners, with costs.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN, McLAUGHLIN and CRANE, JJ., concur.
Ordered accordingly.