
    FOLMSBEE v. CITY OF AMSTERDAM.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    1. Municipal Corporations — Changing Street Grade — Establishment by User. Amsterdam City Charter, (Laws 1885, c. 131,) § 95, providing for the change of the grade of a street as established, applies to a grade established by user as well as to one established by a resolution of the municipal authorities. .
    2. Same—Remedy oe Landowner. Amsterdam City Charter, § 95, provides that when the grade of a street is established the grade shall not be changed except upon the petition of a majority of the contiguous property holders, or unless compensation be made to the owners of property injured by the grading. Held that, where a grade has been changed without such petition, or without compensation being made, an injured property holder may recover by action, and is not bound to ask for the appointment of commissioners to appraise the damages, the remedy pointed out by this section.
    3. Appeal—Objections not Raised Below. An objection that the landowner’s remedy was by motion to appoint Commissioners to appraise the damages, and not by an action against the city, cannot be raised for the first time on appeal.
    Appeal from judgment on report of referee.
    
      Action by Peter Folmsbee against the city of Amsterdam to recover damages for an injury to his premises by reason of a change in the grade of a street. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Edward J. Maxwell, City Atty., for appellant.
    W. B. Dunlap, for respondent.
   PUTNAM, J.

The facts of this case, as far as necessary to detail them, are stated in the opinion of the referee, as follows:

“The action is brought to recover for an injury to plaintiff by reason of the change of grade of Spring street, in the city of Amsterdam, and to restrain the collection of an assessment for the laying of sidewalks in front of the plaintiff’s-premises. The defendant justifies the change of grade and the laying the assessment under chapter 131 of the Laws of 1885, being the act incorporating the city of Amsterdam. The premises in question are situated on the corner of Spring street and Kimball street. Spring street is a street of said city, and has been used for a street for more than twenty years past, and was established by general use, and the street graded accordingly, and sidewalks laid thereon. That more than twenty years ago Kimball street was opened and laid out as a street connecting with Spring street, and at that time Spring street, where it intersects Kimball street, was cut down to conform to Kimball street. Spring street, from Market to Wall street, had been used as a street prior to 1850. That about 1850, Spring street was extended from Wall street, and the same was graded, and a plank road laid thereon. That Spring street from that time continued to be used by the public, and work done thereon by the authorities of the village and sidewalks built at different places on each side of Spring street, the grade and location thereof fixed and adjusted by the trustees of the village. That the grade of said Spring street for over twenty-five years, until 1887, was the natural grade of the surface of the earth, except as to slight inequalities in the natural surface, which had been removed by throwing the earth from the higher to the lower places. ” -

, It is conceded that the grade of Spring street prior to the change in, 1887 had not been determined by any iormal resolution of the authorities of the village or city of Amsterdam. It had only been established by user. Counsel for respondent cites the cases of McCall v. Village of Saratoga Springs, (Sup.) 9 N. Y. Supp. 170; In re Church of Our Lady of Mercy, (Sup.) 10 N. Y. Supp. 683; Bartlett v. Village of Tarrytown, (Sup.) 8 N. Y. Supp. 739,—as showing that a grade, within the meaning of the statute, may be established by user, and need not be founded on an order or resolution of the municipal authorities. But those cases were all decided under chapter 113 of the Laws of 1883. The language-of section 1 of that act is as follows: “Whenever the grade of any street, highway, or bridge in any incorporated village in this state shall be changed or altered, * * * the owner * * * may apply,” etc. That act applies only to villages, and not to a city like Amsterdam. The authority of that city to change the grade of streets is contained in section 95 of its charter, which was in force when the change of grade in question was-made. That section provides that, “when the grade of a street' has been established, and the street graded accordingly, the grade shall not be changed,” etc. It will be seen that the language of the two acts differs materially; hence the authorities cited above are not necessarily decisive of the question before us. Were that question an open one, we should have doubts whether section 95, supra, should not be construed to refer to a grade established by resolution. But this question seems to have been passed upon by the court of appeals. The charter of the city of Kingston, in regard to changing the grade of streets, is the same as that of Amsterdam, (Laws 1875, p. 502.) in O’Reilley v. City of Kingston, 114 N. Y. 439, 21 N. E. Rep. 1004, the action was to set aside an assessment made on account of a change of grade. There was no record of any previously established grade of the street. It was claimed by counsel for appellant that the assessment was void, as involving a change in the grade established without the petition of the adjacent owners. Counsel for respondent claimed that it was not sufficient to show that the street had been graded by the former village of Kingston. It was necessary to show an establishment of the grade, and a working of it. The court held that the charter of defendant prohibited the changing of a grade of a street which had been established, “ except upon a petition of the owners. * * * No petition from a majority of the owners fronting upon the avenue was presented, * * * and consequently the ordinance was without authority if a, material change was effected by it.” This authority seems to hold that under a charter like that of Amsterdam, as to changing grades, the changed grade'may be established by user, and is decisive of the question before us. Hence plaintiff was entitled to compensation for damages suffered on account of the change of grade in question.

Appellant, however, insists that plaintiff has mistaken his remedy. He should have proceeded, under the charter of the city of Amsterdam, to have a commission appointed to appraise his damages. That a municipal corpoiation, acting under authority of its charter,- is not liable for damages in the exercise of the authority conferred, as long as the authority is properly exercised, and not exceeded, unless the statute expressly gives a right to damages. Also that, in case of public improvements authorized by statute, which provides a mode of compensation to persons injured, that mode is exclusive, and no right of action exists in their favor except that directed by the statute. Heiser v. Mayor, etc., 104 N. Y. 68, 9 N. E. Rep. 866; Dill. Mun. Corp. § 686, (543.) This position does not appear to have been asserted in the pleadings, or upon the motion for nonsuit, or during the trial, and we think should not now be sustained. Defendant’s only claim on the trial was that plaintiff was not legally entitled to damages. It made no objection to the method of procedure adopted to recover damages. It did not offer in the answer to make compensation to plaintiff, or to join with plaintiff in an application for the appointment of commissioners. We think defendant should have made the objection now first asserted on the trial, and, failing to do so, such objection cannot now be allowed to prevail. Steers v. Steamship Co., 57 N. Y. 1; Vose v. Cockcroft, 44 N. Y. 415; Thayer v. Marsh, 75 N. Y. 342.

But we think plaintiff was entitled to recover his damages by action, had the objection been taken by defendant to his mode of procedure on the trial. Section 95 of the charter of the city of Amsterdam contains a prohibition against changing the established grade of a street except upon petition of contiguous property owners, unless compensation be made to parties injured. The language of the section leaves no room for doubt that the compensation was intended to precede the change of grade: “The grade shall not be changed * * * unless compensation be made to the owners of the property injured.” Either the petition or compensation must precede the change, and the compensation as clearly as the petition. In this case it is not claimed that there was any petition, and although the change in the grade has been made, no steps whatever have been taken by defendant to pay plaintiff his damages. Defendant has changed the grade without petition, or making or offering any compensation to plaintiff. We are aware that it has been held in many highway, road, and railroad cases that when a party is entitled to damages under a statute providing for compensation the actual assessment or payment of such damages need not precede the taking of his land. Chapman v. Gates, 46 Barb. 317, 54 N. Y. 132; Smith v. Helmer, 7 Barb. 416; Coles v. Trustees of Williamsburgh, 10 Wend. 659; Bloodgood v. Railroad Co., 14 Wend. 51. It will be observed, however, if the statutes referred to in the above and kindred cases are examined, that such statutes do not indicate 'an intention on the part of the legislature that the payment shall be made in advance. The language of section 95 of the charter of Amsterdam is different. It shows a legislative intent that, when a grade is changed by the city without a petition, payment of damages to injured parties shall precede the change. Therefore the doctrine relied on by defendant, .that, if plaintiff has sustained damages, his only remedy is that pointed out by section 95 of the charter,—the appointment of commissioners to appraise the damages,—does not apply. That doctrine only applies where the corporation acts under and in pursuance of the statute. If a corporation exercises an authority conferred upon it in an improper manner, or does an act in violation of the prohibition contained in its charter,—a wrongful act,—by which another is injured, an action may be maintained. See Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. Rep. 321; Dill. Mun. Corp. §§ 990-994. Defendant is prohibited from changing any established grade except on petition of property owners, or unless compensation be made to the party injured. Without such a petition, and without making any compensation, or taking any steps to ascertain the plaintiff’s damages by appointing commissioners, defendant changed the grade. Under the provisions of its charter the presentation of a petition or compensation to parties injured should precede such change. The act, therefore, of defendant, was not only not done under any provision of the statute, but was prohibited by its charter,—a wrongful and illegal act,—and therefore plaintiff, having sustained a serious injury in consequence of such wrongful act, can recover his damages by action. The assessment for laying.the sidewalk in front of plaintiff’s premises is so clearly unauthorized as not ,to require discussion. The judgment should be affirmed, with costs.

; MAYHAM, P. J., concurs. HERRICK, J., concurs in result. 
      
       Amsterdam City Charter, (Laws 1885, c. 131,) § 95, is as follows: “When the grade of a street has been established, and the street graded accordingly, the grade shall not be changed, and the street graded according to the changed grade, except upon petition of the owners of a majority of the lineal feet fronting on the part of the street to be graded, or unless compensation be made to the owners of property injured by the grading, such compensation to be determined by agreement or by three commissioners, to be appointed, who shall view the premises and take evidence. ”
      
     