
    In re GRADE-CROSSING COM’RS OF CITY OF BUFFALO.
    (Supreme Court, Appellate Division, Fourth Department.
    April 10, 1897.)
    1. Eminent Domain—Changing Grade of Street—Damages.
    Owners of lands which were not taken for street purposes, but which were injured by the change in grade of the street on which they abut, are entitled to compensation under Laws 1888, c. 345, § 12 (as amended by Laws 1890, c. 255, | 9), providing that, if the grade-crossing commissioners of the city of Buffalo decide that the grade of any street shall be changed, and that any property may he injured thereby for which owners or persons interested therein are lawfully entitled to compensation, application may be made to the supreme court for the appointment of commissioners to ascertain the compensation therefor to he paid to the parties injured thereby.
    2. Same—Perrons Entitled to Compensation.
    Laws 1888, c. 345, § 12, does not limit compensation to cases in which landowners were entitled to recover damages under the general laws of the state, but also to persons who are lawfully entitled to compensation under the act itself.
    3. Same—Proof of Damage.
    In a proceeding before commissioners appointed by the supreme court on application of the grade-crossing commissioners of the city of Buffalo to determine the damage to property hy reason of a change of grade in a street (Laws 1888, c. 345), evidence of the effect on business while the improvements were being made and its effect after its completion was competent as showing the value of abutting property for business purposes.
    A Eminent Domain—Interest in Property Affected—Lessees.
    Lessees are “persons interested in the land injured” by changing the-grade of a street, to whom compensation must be made therefor (Laws 1888, c. 345, g 12), and therefore it is competent to show how their interests were affected hy such grade for the purpose of apportioning the damages to the property between the owner and lessees.
    Appeal from special term, Erie county.
    Application by the grade-crossing commissioners of the city of Buffalo for the appointment of commissioners to ascertain the compensation to be paid to James W. Wadsworth and others interested in certain lands which may be injured by reason of the change in grade of a street on which such lands abut. From an order confirming the report of the commissioners so appointed to ascertain and report the compensation to be paid the owners and parties interested in lands which were injured by the construction of a viaduct over the tracks of the New York Central & Hudson River Railroad Company, which crosses Michigan street in the city of Buffalo, the grade-crossing commissioners and the New York Central & Hudson River Railroad Company appeal. Affirmed.
    May 22, 1888, an act entitled “An act to provide for the relief of the city of Buffalo and to change and regulate the crossing and occupation of the streets, avenues and public grounds in said city by railroads” (chapter 345 of tfie Laws of that year) was enacted, which was amended hy chapter 255 of the Laws of 1890, and by chapter 353 of the Laws of 1892. Before the passage of chapter 345 of the Laws of 1888, plans for obviating the then existing grade-crossings had been recommended by a commission of engineers held at Buffalo in February, 1888, and the plans had been filed in the office of the city engineer. By section 1 of chapter 345 of the Laws of 1888, as amended by chapter 353 of the Laws of 1892, a commission was appointed, with authority to relieve the city from grade crossings, pursuant to the plans then adopted and thereafter to he adopted by said commissioners, and to contract with railroad corporations interested for the abolishment of such crossings. By section 5, as amended by chapter 255 of the Laws of 1S90, it was provided that, if any railroad corporation should fail to enter into a contract, as provided for by section 1, the commissioners might proceed to relieve the city from grade crossings, as provided by the act. By section 9 of chapter 345 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890 and by chapter 353 of the Laws of 1892, it is provided that the city shall pay part of the expense, and the railroad corporation whose tracks are crossed by elevated structures shall pay part of the expense, of the improvement, to be adjusted by a commission in case the commissioners and the corporation are unable to agree upon the proportion of the expense to be paid by each. Section 12 of chapter 345 -of the Laws of 1888, as amended by section 9 of chapter 255 of the Laws of 1890, provides: “Sec. 12. If the commissioners shall decide that it is necessary for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, that any street shall he closed or discontinued, or that the grade of any street or portion of any street or public ground shall be changed, and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation, or that any land shall be taken incident to the changes of the grade of any street, or to widen any street, or in the event that the commission shall undertake the work on the failure of the company or companies to do so, the commissioners, by their chairman, may apply to a special term of the supreme court for the appointment of three commissioners to ascertain the compensation therefor to he paid to the owners of, or parties interested in, the land proposed to be taken, or which may he injured.” Michigan street extends northerly and southerly through the city, and is crossed at right angles by the tracks of the New York Central & Hudson River Railroad Company, and at grade, before the construction of the viaduct. Next north of the railroad is Exchange street, which crosses Michigan street at right angles. Next south of the railroad is the Hamburg Canal, which crosses Michigan street at right angles; and next south of the canal is Scott street, which crosses Michigan street at right angles. The grade-crossing commissioners adopted the following plan for crossing the tracks of the railroad by a viaduct in Michigan street: “At Michigan street, a viaduct to be constructed to carry Michigan street over the railroad tracks extending from the south line of Carroll street to the south line of the Main and Hamburg Canal, the width of the viaduct and approaches to be fifty-six feet,—forty-two feet of roadway and two sidewalks of seven feet width each,— and to have approaches built of iron and stone; the structures over the railroad tracks to be of iron; the height of the structure to be thirteen feet from the grade of Exchange street, the grade of Exchange street being lowered one foot, to admit such clearances. This changes the grade of the street so far as it is carried on this viaduct, commencing at its beginning, near Carroll street, running southerly on a four per cent, and 3.02 per cent, rise till the floor of the viaduct reaches the height of 23.17 feet above datum or base line of levels; thence level across the tracks of the railroad; thence on a descending grade of four per cent, until it reaches a point 112 feet south of the abutment on the south side of Hamburg Canal. The height of the structure will not be less than fifteen feet over the railroad tracks.” The city constructed the viaduct, completed the improvement, and afterwards, and on May 19, 1896, the grade-crossing commissioners signed and verified a petition praying for the appointment of commissioners to ascertain and report the just compensation to be paid to the owners and the parties interested in the land described in said petition as follows: “Beginning in the southerly line of Exchange street • at its intersection with the westerly line of Michigan street; running thence westerly along the southerly line of Exchange street, two hundred and ten feet: thence southerly, at right angles to Exchange street, one hundred and ten feet: thence easterly, parallel to Exchange street, two hundred and. ten feet, to the west line of Michigan street; thence northerly along the west line of Michigan street one hundred and ten feet, to the place of beginning.” The property is known as the “Continental Hotel Property,” and was occupied for an hotel and stores. The land of the railroad company, which is used for its tracks, adjoins the Continental Hotel property on the south, which said property is bounded on the east by Michigan street, and on the north by Exchange -.street. On the lOtli of June, 1896, the commissioners’ petition was presented to a special term, anti three commissioners were appointed to ascertain and report the amount of compensation to be paid to the owners and parties interested in the land described for the injuries thereto occasioned by the improvement. September 23, 1896, the commissioners made and signed their report,, by which they awarded $91,589 damages, to be paid as follows:
    To James W. Wadsworth, as owner............................ $59,700
    To Charles I. Baker, lessee of Continental Hotel.................. 30,580-
    To Jabez H. and Seward E. Peterson, lessees of a store.......... 1,359-
    Total ................................................... $91,589
    The New York Central & Hudson River Railroad Company filed exceptions-to the report (no other exceptions being filed), and upon the motion for confirmation (no other objections being made) objected to its confirmation, but it was confirmed by an order granted October 1 and entered October 8, 1896, from which order this appeal is taken.
    Argued before HARDEN, P. J., and FOLLETT, ADAMS, GREER, and WARD, JJ.
    Spencer Clinton, for appellants grade-crossing commissioners.
    Charles A. Pooley, for appellant Rew York Cent. & H. R. R. Co.
    Herbert P. Bissell, for respondents James W. Wadsworth and others.
    Marcy & 'Close, for respondent Charles I. Baker.
    Brundage & Dudley, for respondents Jabez H. and Seward E. Peterson.
   FOLLETT, J.

The learned counsel for the Rew York Central & Hudson River Railroad Company insists that the order confirming the report of the commissioners should be reversed for four reasons: (1) That, none of the property of the respondents having been taken, they, as owners and occupants of realty abutting on Michigan street, are not “lawfully entitled,” under section 12, quoted in the statement of facts, to damages resulting from the construction of the improvement ;• (2) that the damages awarded are excessive; (3) that damages were-erroneously awarded for diverting business from the property, and for-obstructing the street while the improvement was being made; (4) that damages sustained by the occupants of the really bv the diversion of business during the construction of the improvement were erroneously included in the sum awarded.

The contention that the rights of the litigants in this proceeding are controlled by the cases of which Ottenot v. Railway Co., 119 N. Y. 603, 23 N. E. 169; Reining v. Railway Co. (Super. Buff.) 3 N. Y. Supp. 238, affirmed 128 N. Y. 157, 28 N. E. 640; and Talbot v. Railroad Co., 78 Hun, 473, 29 N. Y. Supp. 187, affirmed 151 N. Y. 155, 45 N. E. 382, —are type's, cannot be sustained. Ottenot’s Case was an action at law to recover damages of the defendant for constructing an embankment in Commercial street, in the city of Buffalo, in front of the plaintiff’s lots, for the purpose of carrying that street over the defendant’s tracks' in Water street. The obstruction complained of was an approach for an overhead crossing, the construction of which was authorized by the-city; and it was held that the plaintiff could not recover dámages of the defendant for changing the grade of the street under the authority of the city. The plaintiff did not seek redress under section 17 of title 9 of chapter 519 of the Laws of 1870,—the charter of the city of Buffalo. Reining’s Case was an action at law for the recovery of damages of the defendant for having constructed its road on an embankment in and along Water street, in the city of Buffalo, which interfered with the use of the plaintiff’s property. The embankment was not an approach for an overhead crossing,—a change of grade,—but it was-an appropriation of Water street for railroad purposes; and it was held that damages were recoverable. Talbot’s Case was brought to restrain the defendant from constructing, pursuant to legislative and municipal authority, a crossing in Forty-Eighth street, in the city of New York, over its track, which crossed that strec-t. These cases, and many similar ones which might be referred to, are not germane to this-proceeding, which was begun, not by the landowner for the recovery of affirmative relief, legal or equitable, but was begun by the grade-crossing commissioners to assess the damages occasioned to the real estate described in the proceeding by the proposed improvement. The contention of the counsel for the railroad company that, because none of the respondents’ land was taken for the purposes of the improvement, the damages occasioned to the land cannot be recovered, is not sustainable. Such is the general rule applicable to cases not controlled by statutes (Folmsbee v. City of Amsterdam, 142 N. Y. 118, 36 N. E. 821), but this case is governed by section 12 of chapter 345 of the Laws of 1888, as amended by section 9 of chapter 255 of the Laws of 1890, and quoted in the statement of facts.

It is plain that the legislature, by this section, intended that the-city and the railroads should compensate the owners and persons interested in real estate (1) for land actually taken, and (2) for land not t alien, but injured by the construction of the improvements authorized by the act. It is contended in behalf of the railroad that it was the intention of the legislature simply to authorize compensation to be made in cases in which landowners were entitled to recover damages under the general laws of the state. I do. not so read the section. The words, “the owners and persons interested therein are lawfully entitled to compensation,” refer to persons who are lawfully entitled to compensation under this statute. But, assuming that these words refer to rights to compensation existing under other laws or statutes, the case of the appellants is not helped, for, when chapter 345 of the Laws of 1888 was passed, section 17 of title 9 of chapter 519 of the Laws of 1870 (the charter of the city of Buffalo) provided that, “When the city shall alter the recorded grade of any street or alley, the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration,” which provision was incorporated in section 406 of chapter 105 of the Laws of 1891 (the present charter of the city of Buffalo). The sections referred to also provide a mode for ascertaining and paying the damages occasioned abutting property, by the change of the grade of the street; so, when chapter 345 of the Laws of 1888 was enacted, the owner of realty abutting on a street which was injured by changing the grade of the street was “lawfully entitled to compensation therefor.” Under the grade-crossing statutes and the charter of the city of Buffalo, the owners and persons interested in land not taken, but injured by the improvements made, pursuant to these acts, are entitled to be compensated for the damages sustained. The same view of the effect of these ■statutes was taken by the Third appellate division In re Grade-Crossing Com’rs of City of Buffalo, 6 App. Div. 327, 40 N. Y. Supp. 520, though the precise point here considered was not involved in that -proceeding, as in that case part of the land of the claimant was taken.The injustice of injuring abutting lands on streets by changing their .grade for the benefit of the municipality has been recognized by a statute which provides that whenever the grade of any street, highway, or bridge in any incorporated village is changed or altered, to the injury •of abutting realty, compensation must be made. Chapter 113, Laws 1883; 3 Rev. St. (9th Ed.) p. 2557.

Are the damages awarded excessive? Four witnesses sworn in behalf of the landowner estimated the difference in the valué of the premises before and after the construction of the improvement. One estimated the damages at $100,000, one at $114,000, one at $129,000, and one at $160,000. The testimony of these witnesses shows that they are men of much experience in real estate in the city of Buffalo, and their competency to express an opinion is not questioned. The witnesses sworn in behalf of the city and of the railroad estimated the ■damages at a much smaller sum, but the commissioners appointed to assess the damages were freeholders of the city; were in a position to judge of the value of the testimony of the witnesses; and, in addition, they saw the property, and were presumably selected for their knowledge of the values of real estate; and, it not appearing that they took into account any element not proper to be considered, their award should not be set aside as excessive.

Charles I. Baker was a lessee in possession of the hotel property, under a lease extending from August 1, 1893, to December 31, 1899, at the annual rental of $7,000, and of two stores, under a lease extending from Hay 1, 1893, to May 1, 1900, at an annual rental of $1,-200. Jabez H. Peterson and Seward E. Peterson were lessees in possession of a drug store, under a lease extending from May 1, 1893, to May 1,1896, with the privilege of renewal for two years, at an annual rental of $800. The improvement was begun May 16, 1895, when Michigan street was closed, and was completed the last of March, 1896. Evidence was given by the lessees and by others showing the effect on their respective businesses while the improvement was being made and its effect after its completion. This was competent, not on the theory that the loss of the profits was an element of damages, but it bore on the question of the value of the property for business purposes. Brucker v. Railway Co., 106 N. Y. 157, 12 N. E. 568; Doyle v. Railway Co., 128 N. Y. 488, 28 N. E. 495; Cook v. Railroad Co., 144 N. Y. 115, 39 N. E. 2.

The lessees were “parties interested in the land injured,” under the twelfth section of the statute, and it was competent to show how their interests were affected for the purpose of apportioning the damages to the property between the owner and the lessees. The apportionment did not concern the city nor the railroad. There is nothing in the case justifying the inference that the loss of profits of the lessees was taken into account in estimating the damages. The respondents were entitled to recover for the diminished rental value of the property from the time that work was commenced on the improvement down to the time when the easements were acquired,—past damages,—and also to recover the damages to the fee. The amount of rents received is not the measure of damages, but the difference in the rental value of the property is, and the actual effect of the improvement upon the property may be shown as bearing upon this question. Besides, under the statute, the lessees as well as the owners were entitled to their damages, and they were united in this proceeding by the grade-crossing commissioners for the purpose of having the damages of all assessed in one proceeding. The appeal of the grade-crossing commissioners does not seem to require much discussion. They began this proceeding to have the damages to this property appraised. They filed no exceptions to. the report of the commissioners; did not object to its confirmation; but, on the contrary, moved that it be confirmed. It is insisted in their behalf that they should have been allowed costs in addition to their disbursements. The following costs and disbursements were allowed:

To the grade-crossing commissioners, disbursements...............$1,160 22

To .lames W. Wadsworth, costs and disbursements................ 830 00

To Charles I. Baker, costs and disbursements..................... 100 00

To Jabez H. and Seward E. Peterson, costs........................ 25 00

Total ..................................................... $1,615 22

One-half of this sum was ordered to be paid by the city and one-half by the railroad, “in accordance with the contract entered into between the grade-crossing commissioners of the city of Buffalo and the said railroad companies to change the grade of Michigan street.” The contract is not in the record, but we assume that its terms were made known to the special term, and that its order is in accordance with the contract. This being a special proceeding, the allowance of costs was in the discretion of the court. Code Civ. Proc. § 3240.

The order should be affirmed, with costs to be taxed in favor of the respondents and against the appellants. All concur.  