Mount Vernon Realty Corp. v. City of Mount Vernon

241 A.D. 882 | N.Y. App. Div. | 1934

Order dismissing the complaint affirmed, with ten dollars costs and disbursements. The abutter whose property has been damaged by a change of grade legally authorized is relegated to the statutory remedy, to wit, proceedings in condemnation; and in the event such proceedings are not brought he may mandamus the municipality to institute them. (Smith v. Boston & Albany Railroad Co., 181 N. Y. 132; Matter of Melenbacker v. Village of Salamanca, 188 id. 370; Matter of Torge v. Village of Salamanca, 176 id. 324.) It is only where a change of grade has been illegally accomplished with consequent damages to an abutter that he may bring an action therefor and may not be confined to what would otherwise be the exclusive statutory remedy. (Fuller v. City of Mount Vernon, 171 N. Y. 247.) The case of Sweeting v. City of Rochester (127 App. Div. 880; affd., 194 N. Y. 565) falls within the doctrine of Fuller v. City of Mount Vernon (supra), which fact, however, is made clear only by examining the companion case of Bernhard v. City of Rochester (127 App. Div. 875). Young, Hagarty, Carswell, Seudder and Davis, JJ., concur.