| N.Y. App. Div. | Jan 14, 1942
Judgment modified on the law in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Twenty-first conclusion of law disapproved and reversed and new conclusion made. Memorandum: The railroad claims that it is entitled to recover consequential damages to property owned by it and not appropriated for elevation of its tracks. The learned official referee in his opinion correctly holds, as we believe, that the validity of such claim is a matter to be determined by the Court of Claims. In the conclusions of law contained in the decision and in the judgment it is stated that any such damage may be “ determined and recovered in the Court of Claims.” Of course, the official referee did not intend to decide that consequential damages “ may be * * * recovered in the Court of Claims,” but the language used lends itself to such construction. We are of the opinion, therefore, that the judgment should be modified by striking therefrom the paragraph adjudging that damage to property of. the railroad not appropriated “ may be determined and recovered in the Court of Claims,” and by inserting in place thereof the following: “ Adjudged, decreed and declared that the Court of Claims has the power to determine whether any claim for consequential damages to property of the railroad not appropriated is a legal claim upon which recovery may be had,” and that the judgment as modified be affirmed, without costs. AH concur. (The judgment holds that the proceeding is a proper action for a declaratory judgment, and determines and declares the interests of the parties entitled to compensation in a grade crossing elimination.) Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.