
    In the Matter of Sidney F. Kruger et al., Respondents. Town of Hempstead, Appellant.
   In an application pursuant to section 197 of the Highway Law the Town of Hempstead appeals from an order appointing three commissioners to determine the compensation due to respondents, property owners abutting Ibsen Street in said town, by reason of a change of grade made in said street by the town in 1952. Order affirmed, with $10 costs and disbursements. No opinion. Adel, Acting P. J., Wenzel, Schmidt and Murphy, JJ., concur. Beldock, J., dissents and votes to reverse the order and to remit the matter to Special Term to take proof (1) whether the original grade of Ibsen Street had become established by usage, acquiescence and recognition, and (2) whether the work done by the town in 1952 was a change of grade or a mere improvement, with the following memorandum: The grade of a town highway may be established by usage. (Folmsbee v. City of Amsterdam, 142 N. Y. 118.) A change of grade may result where there is a change from the natural grade of a road. However, a mere improvement in the street, which incidentally results in making a road higher than it was formerly, does not necessarily result in a change of grade. (Stenson v. City of Mount Vernon, 104 App. Div. 17.) Whether or not there was a change of grade from a grade previously established by usage, acquiescence and recognition, or whether there was a mere improvement was a question of fact which required determination before the court may appoint commissioners. (Matter of Borup, 89 App. Div. 183; Comesky v. Village of Suffern, 179 N. Y. 393.) Since the determination of this question of fact is a jurisdictional question, and since the order affects a substantial right made in a special proceeding pursuant to a special statutory provision, the order appointing commissioners is appealable. (Civ. Prac. Act, § 631, subd. 2; Matter of City of Rochester [Neun], 102 App. Div. 99; Matter of City of Buffalo, 64 N. Y. 547; Hooker v. City of Rochester, 57 App. Div. 530.)  