
    
      In re Stack.
    (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    Municipal Corporations—Change in Grade op Streets—Abutting Owners.
    Under Laws N. Y. 1883, c. 113, making villages liable to abutting owners for damages occasioned by a change in the grade of streets, a village is liable to an abutting owner, where the change is made with its permission by a railroad company.
    Appeal from special term, Westchester county.
    Application of Catherine Stack for the appointment of a commission of appraisal to assess damages to petitioner’s property occasioned by a change in the grade of a street by the village of Portchester. Order making the appointment, and the village appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      M. G. Keogh, for petitioner. Close c& Robertson, for village of Portchester.
   Barnard, P. J.

According to the general rule of legislation, the village

of Portchester has the exclusive supervision and control of the streets and highways within the corporate limits. Chapter 818, Laws 1868, tit. 5, § 1. The Hew York & Hew Haven 'Railroad was permitted to lay its tracks in this state by chapter 195, Laws 1846. The village of Portchester was not then incorporated, and the railroad company was subjected to the obligation to restore a highway cut or intersection. The road was built before the village existed, and, once built, the power to change the grade in the village ceased without the consent of the village authorities. This follows from the grant of the exclusive power over the highways by the charter. The grant was subject to the prior grant to the Hew York So Hew Haven Bailroad Company. The railroad company applied to the village to change the grade of one of its streets. Permission was granted, and such change of grade was made as injured the petitioner’s abutting property. Until the passage of chapter 113, Laws 1883, such change of grade was legal, and did not involve an action for damages at the instance of the land-owner. By this act, in villages, damages were given to abutting owners, where the municipality changed the grade. Under this act the-petitioner asks for a commission, according to its terms, to assess lier damages, and the sole question raised is whether the authority to change the grade given to the Hew Haven Railroad was such an act that the petitioner can claim her damages as if the village had directly made the change itself. There seems to be no reason why the provisions of the act do not apply to the plaintiff’s case. She is an abutting owner. She is injured by a change of grade. The change of grade was permitted by the village. It was ordered because “public safety makes it desirable.” The fact that the railroad company paid the expense and did the work in accordance with the plan has no relevancy as to the petitioner. The village method of changing her grade was followed out, and the petitioner was thereby injured. Without the order of the village the act would have been a trespass, and the company would have been responsible for all damages done. Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. With the consent of the trustees, the company are not liable. Id. The order appealed from should be affirmed, with costs.

Pratt, J., concurs.  