150 N.Y.S. 679 | N.Y. Sup. Ct. | 1914
The commissioners appraised defendant’s damage by reason of the taking of a triangular piece of land ten feet wide at its west and fifty-three feet long, six one-thousandths of an acre, extending across the north end of defendant’s residence lot abutting on the highway the sum of $675. The commissioners also appraised defendant’s damage to the residue of her property on account of the taking the above mentioned strip for the use of a highway and the raising of the grade of the highway adjacent to the north side of the triangular strip so taken by the building of an approach to a railroad bridge, such grade to be raised from zero at the east line of defendant’s premises to about seven feet at the west line of defendant’s premises at the sum of $750 ; a total award of $1,425.
In this case it was held that the statute quoted had no application to highways constructed by the state under the so-called Good Roads Law. The state is not liable at common law to an abutting owner for a change of grade of a highway, and is only made liable by virtue of some statute. Warner v. State of New York, 132 App. Div. 611; 204 N. Y. 682.
The change of grade for which defendant claims and has been awarded damages by the commissioners is on a state highway. Highway Law, § 120. It is not on a town highway. No authority has been furnished establishing a liability on the part of the state for the last item of the commissioners’ award. Such item is not a part of the expense incurred by the state in eliminating the grade crossing, and the railroad is only liable for a share of what expense the state incurs in such elimination. The award of $750 as damages to the defendant for the change in grade of the highway was unauthorized.
The report of the commissioners ought to be confirmed as to the award for the value of the land taken, and set aside as to the award for consequential damages depending upon the change of grade of the highway; but such determination cannot be made by the Special Term. By section 3371 of the Code of Civil Procedure the only power of this court is to confirm the report or set it aside; the report cannot be modified by striking out part of the award and confirming as modified. Matter of Central New York T. & T. Co., 36 App. Div. 553; Matter of Town of Guilford, 85 id. 207; Matter of Johns v. Village of Salamanca, 129 id. 721.
Ordered accordingly.