
    W. Frank Wiley, Resp’t, v. The Village of Tarrytown, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 18, 1889.)
    
    1. Municipal ' corporations—Action fob damages.
    An action against an incorporated village for injury to plaintiffs possession of land on a street, is no bar to a petition for a commission to assess damages for a change in the grade of a street, as such damages to be assessed are to land “ adjoining” the highway.
    2. Same—Laws 1883, chap. 113.
    A change of grade made by an incorporated village, in a street taken by it as a public highway, is within the provisions of chapter 113, Laws 1883, providing for a commission to assess damages to adjoining land owners, . when their lands or buildings are injured by a change in the grade of the street.
    Appeal from an order of the special term, Westchester county, appointing commissioners to assess damages for a change in the grade of a street in the village of Tarry-town.
    
      J. S. Millard, for app’lt; L. T. Yates, for resp’t.
   Barnard, P. J.

This appeal is from an order appointing a commission, upon the petition of another land owner on John street. This petitioner only owned land on the old street, where the village had never established a grade •before the extension. On the Bartlett appeal, ante, p. 272, we held that the old street was taken as an established highway when the village was incorporated, and that a subsequent change of grade was within the act. The street was lower from one and a half to four feet. The petitioner’s right to a commission is thus established, and the •extent of the injury is for the commission. The other defense to the granting of the petition is that there is an action pending, brought by petitioner, against the village. There is no conflict between the two proceedings. The action is for an injury to the petitioner’s possession of the land on the street. The village pleaded that it was a highway in 1871, and has been ever since. In this proceeding it is admitted that John street (the old part) was an open public street when the village was incorporated, about the year, 1871, and it has been used as such until this time. The commissioners are to assess the damage to the land “adjoining such highway.” The action thus effects the injury to the land in the highway, and the other proceedings, the land adjacent.

The order, therefore, was right, and should be affirmed, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.  