
    The People of the State of New York ex rel. Auguste Bolza, Relator, v. Robert B. Adam and Others, as Grade Crossing Commissioners of the City of Buffalo, Respondents.
    
    
      Petition to compel Buffalo grade crossing commissioners to apply for commissioners to appraise damages sustained by the petitioner — sufficiency thereof.
    
    An owner of property in the city of Buffalo who seeks to compel the commissioners appointed under the Buffalo Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws of 1890, chap. 255) to apply for the appointment of commissioners to appraise the damages alleged to have been done to her property in the making of the improvement contemplated by the Grade Crossing Act, must affirmatively establish a necessity for the application, but it is not necessary that this be done by language which is exact and technical; it is sufficient if the language is such as to bring the case fairly within the intent and spirit of the Grade Crossing Act. ,
    A petition alleging that pursuant to an agreement entered into between the grade crossing commissioners and the New York Central and Hudson River Railroad Company and pursuant to the provisions creating the grade crossing commissioners of the city of Buffalo and the various acts amendatory thereof and supplementary thereto, a cut or opening twenty-eight feet wide and four feet deep was made in the street in front of her property and that such cut was appropriated to the exclusive use of the railroad company, is sufficient to establish that the commissioners had jurisdiction to entertain such property owner’s claim, although the petition does not, in terms, allege that for the purpose of carrying out any plan adopted by them the grade commissioners had decided that it was necessary to close or discontinue any portion oí the highway or to change the grade thereof or that any portion of the highway has been actually closed or discontinued or that the grade thereof has been changed.
    Certiorari issued out of the Supreme Court, and attested on the 25th day of June, 1902, directed to Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings in denying to "the relator a hearing, and in refusing to apply for the appointment of a commission to appraise the compensation to be awarded her for alleged damages to certain premises owned by the said relator.
    
      Frank F. Williams, for the relator.
    
      De Witt Clinton, for the respondents.
    
      
       This ease was decided at the December Term, but the papers were received too late to be published with the other opinions of that term.
    
   Adams, P. J.:

This is a proceeding which was commenced by the granting of a writ of certiorari by the Erie Special Term to review the action of the grade crossing commissioners of the city of Buffalo, denying to the relator a hearing and also denying her request that application be made for the appointment of a commission to appraise the compensation to be awarded her for damages caused by the construction of a viaduct and tunnel through a street or public highway known as The Terrace,” in front of the relator’s premises upon the ground that the grade crossing commissioners had no jurisdiction.

.The act in question (Laws of 1890, chap. 255, § 9, amdg. Laws of 1888, chap. 345, § 12) provides, among other things, that “ If the commissioners shall decide that it is necessary' for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, that any street shall be closed or discontinued, or that the grade of any street or portion of any street or public ground shall be changed, and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation, * * ■* the commissioners, by their chairman, may apply to a Special Term of the Supreme Court for the appointment of three commissioners to ascertain the compensation therefor to be paid to the owners of or persons interested in the land proposed to be taken" or which may be injured.”

The relator in her petition states, in substance, that in the year 1895, pursuant to an agreement entered into between the grade crossing commissioners, in behalf of the city of Buffalo, and the Hew York Central and Hudson Biver Bailroad Company, and pursuant to the provisions creating the gradé crossing commission of thé city of Buffalo, and the various acts amendatory thereof and supplemental thereto, a cut or opening was made in the so-called Terrace through the same f-rom the east to the west, and passing immediately in front of her premises, which opening or excavation is about twenty-eight' feet in width and four feet in depth below thé surface of the Terrace, and that about such opening there were erected two copings or stone walls, with two iron fences thereon, which copings, stone walls and iron fences were erected above the surface of the Terrace to the height of about four and one-half feet; that the same were extended through the Terrace and across the entire front of her premises, and that thereby there was appropriated to the exclusive use of the Hew York Central and Hudson Biver Bailroad Company so much of the Terrace as was included within such excavation, copings,'stone Walls and iron fences, and that such excavation, copings, stone walls and iron fences have, continued to exist as so erected, and do continue to exist at the present time; that they deprive the owners of the premises adjacent thereto of the access to and egress' from their respective premises which they had always enjoyed prior to the year 1895, when such structures were' erected, and have lessened and injured the rental and actual value of the relator’s premises.

It is to be observed that in her petition the relator does not in terms charge that for the purpose of carrying out any plan adopted by them the grade crossing commissioners had decided that it Was necessary to close or discontinue any portion of the Terrace, or to ' change the grade thereof; nor does she allege in so many words that any portion of the Terrace has been closed or discontinued, or that the grade thereof has been changed, and we assume that it was because of these informalities that the commissioners held that they had no jurisdiction to entertain her claim. If we are correct' in this assumption, we think the commissioners were clearly in error.

The “ Grade Grossing Act ” was obviously designed by the Legislature to afford a summary and inexpensive method by which claims arising out of the appropriation of or changes in the streets of that city might be determined; and while it may be conceded that before persons seeking to avail themselves of such act can invoke the aid of tribunals exercising semi-judicial powers by virtue of special statutory provisions, they must' in their petition, which furnished the jurisdictional foundation of their proceeding, make an affirmative case of necessity for the application, yet we think it is not essential that this be done by language which is exact and technical, if only it be such as to bring the case fairly within the intent and spirit of the creative act. This to our mind is a just and reasonable rule, and there is ample reason why it should obtain in a case arising under an act like the one in question which this court has held affords a remedy exclusive in its nature. (Matter of Myer v. Adam, 63 App. Div. 540; affd., 169 N. Y. 605 ; S. C., People ex rel. Myer v. Adam, 74 App. Div. 604.)

■ Giving, therefore, to such an act a fairly liberal construction, it is not at all difficult to reach the conclusion that the relator’s petition contained allegations which are sufficient, to call upon the commissioners to take such action as is contemplated by the statute from which their power to act is derived; for it is to he observed that she not only avers that the cut or opening complained of was the result of an agreement entered into by the grade crossing commissioners on behalf of the city of Buffalo with the railroad company, but she adds that this agreement was made “pursuant to the provisions of the act creating the grade crossing commission of the city of Buffalo and the various acts amendatory thereof and supplementary thereto; ” which, in our opinion, is equivalent to saying that it was the result of a determination by the commissioners that, for the purposes of carrying out a plan adopted by them, it was necessary to do the thing complained of, which as the petition and accompanying affidavits disclose was such an alteration of the grade of the Terrace or such partial closing of the street itself as caused a substantial diminution in the rental and actual value of the relator’s premises.

We conclude, therefore, that the relator is entitled to a hearing, and that if upon such hearing she establishes the allegations of her petition, commissioners should be appointed to appraise the compensation to which she may show herself entitled.

An order may be entered accordingly.

Spring, Williams, Hisoook and Nash, JJ., concurred.

Determination of commissioners overruled, and hearing directed, with fifty dollars costs and disbursements.  