
    (March 28, 1966)
    In the Matter of Joseph Nicholas, Appellant, v. Town of Johnstown, Respondent.
   Per Curiam.

Appeal from an order of the Supreme Court at Special Term which dismissed, after a hearing at which evidence was adduced, the petition in a proceeding brought under section 197 of the Highway Law to recover damages resulting from a change of grade of a town highway adjacent to petitioner’s land. Upon this record, we cannot disturb the Special Term’s findings that: “According to the evidence adduced from these experts there appears to be a well recognized difference in the business or profession between a macadamized highway and a gravel and oil road. On the basis of the evidence submitted in this particular proceeding the Court finds that the petitioner has failed to establish that the town highway in question was macadamized within the meaning of Section 197.” If the statute requires modernization, this question is, of course, for the Legislature. Order affirmed, without costs.

Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.  