
    Betsey A. Lawrence, Respondent, v. City of Corning, Appellant.
    Fourth Department,
    November 15, 1910.
    Municipal corporations — change of grade, city of Corning—when adjoining owner entitled to compensation — charter construed.
    A landowner in the city of Corning who was damaged by a radical change of grade incident to repaving streets in that city is entitled to compensation, although the city authorities did not proceed under section 112 of the city charter providing that grades established by the common council or board of public works cannot be changed unless compensation be made to persons damaged.
    It is immaterial that the grade which was changed was not formally established by the municipal authorities after the incorporation of the city; compensation must be paid where grades existing before the incorporation of the city are changed to the damage of an adjoining owner.
    Appeal by the defendant, the City of Corning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of the county of Steuben on the 10th day of December, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Waldo W. Willard, for the appellant.
    
      Fred A. Robbins, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover. damages for the change of grade of a street in the city of Corning.

There was no dispute on the trial but that the grade of the street was raised several feet in 1906, and the amount of damages recovered, $950, is not claimed to be excessive. It is contended that there was no right to recover against the city because there never was any grade of the street established prior to 1906, and, therefore, no change of grade when the grade was raised in that year, and that the right to recover, if any existed, was against the petitioners who. procured the change in the street to be made.

The city was incorporated March 20, 1890, by chapter 58 of the Laws of 1890, and the charter was generally revised by chapter 142 of the Laws of 1905. The plaintiff owned her lot for many years before such incorporation, when the city was a village. Section 112 of the revised charter provided : “ When the grade of the street or other way has been established by the common council or board of public works, and the street or other way graded accordingly, the grade thereof shall not be changed, except upon petition of the resident owners of more than one-half of the lineal feet of real estate adjacent and contiguous to that part of the street or other way to be regraded, nor unless compensation be made to persons damaged by the regrading, such compensation to be determined by agreement or by three commissioners to be appointed by the * * * court * * *. Said commissioners shall make a report of their proceedings to the court * * * whose award shall * * be final. * * * And when any such award shall be confirmed by the court, the amount thereof shall be a valid liability against such owners of real estate adjacent and contiguous to that part of the street or other way regraded, and may be enforced against them in the manner in this section {sic title) provided for enforcing collection of the expense of paving or grading for the purpose of paving.”

Section 113 provided for paving or macadamizing streets, and this was done upon petitions of adjacent owners also.

In 1905 there was a petition presented to the common council for the paving and grading of the street in question. The petition did not appear to be made purely under section 112, there being no reference to any change of the grade. The common council seemed to regard the application as one for paving, and only for grading as incidental to the paving, hlo proceedings were taken under section 112 to ascertain the compensation to be made for damages resulting from such change of grade, and yet the city, by its officers, went on and made a radical change in the grade as it had existed since about the time the city was incorporated, raising the roadbed several feet. It could, therefore, hardly be regarded as merely grading necessary and incidental to the prning. It was a substantial change of the existing grade of the street. If it was a change of grade from one which had theretofore been established by the common council, then the city could not legally do it except on the petition therefor under section 112 and the proceeding there provided, fixing compensation for damages and providing for the enforcement of the payment thereof. The petitioners would not be liable except in the manner and to the extent provided in that sectiom They could not be held liable in an ordinary action for damages. Petitioning for the grading merely would not render the petitioners liable for any illegal act of the city in doing the work otherwise than pursuant to the provisions of section 112. The city committed the wrong, if any one did, and unless recovery can be had against the city, none can be had at all for plaintiff’s damages. So that the main question in this case is whether there was a change "of the grade of the street under section 112. The change must be from a grade established by the common council, and it is said this must have been indicated by some formal action or resolution under this section. I do not think so. There is no such language in this particular section, and it would be a strange construction to so hold where the grade changed had existed during the life Of the city, sixteen years, or practically so, as it had done here. The city took over all streets of the village in the condition they were in at the time the city came into being. Either the grade of this street as it then existed continued until the change in 1906, or else the grade was changed and established by the city soon after it was incorporated. In either case I think the change in 1906 was from a grade, theretofore established or ratified by the common council.

I do not think it necessary to review the authorities cited and commented on by counsel. The principal ones are : Folmsbee v. City of Amsterdam (142 N. Y. 118); Bernhard v. City of Rochester (127 App. Div. 875) and cases therein referred to.

All concurred.

Judgment and order affirmed, with costs.  