93 N.Y.S. 309 | N.Y. App. Div. | 1905
The plaintiff has recovered damages as an abutting owner because of an alleged unlawful change by the defendant of the grade of the street known as South Eighth avenue, in the city of Mount Vernon. The plaintiff’s property is one hundred feet front between Fourth and Fifth streets, and has a small two-story frame house upon it. The. lot is a low one. If the acts of the defendant amounted to a change of the grade of the street it seems to be conceded that they were unlawful under the provisions of the city charter, and that they consequently subjected the defendant to liability for any damage resulting to the abutting property. The provisions of the city charter (Laws of 1892, chap. 182) which it is claimed were violated are contained in sections 168 and 187, and no further reference to them is necessary for the purpose of this decision.
It appears that South Eighth avenue was prior to the alleged
I think that decision is conclusive against the plaintiff’s right of recovery. It settles the law to the effect that the mere improvement of a street is not an alteration of the. grade within the meaning of the statute, notwithstanding that some physical changes, of the surface of the street may be incidental'to the improvement. South
The nature of the change was clearly described by the plaintiff’s witness, the engineer under whose supervision the work was done. He testified as follows \f “ This was a heavy, irregular road in places. It was not what I should call graded anywhere. There was no continuous unbroken grade or rise between Fourth and Fifth street along one level or one rise at one continuous angle. It was an irregular road. Speaking as an engineer I would not .consider that a graded road. I should not think it was a graded road until this improvement was made. * * * The improvement was designed to and did, change the irregular line of the old dirt road into the evenly continuous ascent and roadbed of the street as completed.”
The view herein taken of the case renders it unnecessary t‘o con-i side'r the other points presented.
The judgment "and order should be reversed.
Woodward, Jenks, Rioh and Miller," JJ., concurred. ■
Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.