
    Bartlett v. Village of Tarrytown.
    (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    1. Municipal Corporations—Public Improvements—Award op Commissioners.
    Where commissioners are legally appointed to assess damages to private propperty, injured by reason of public improvements, the courts cannot interfere with their award, unless some rule of law is infringed in their proceedings, or unless the damages are so grossly excessive as to indicate passion, prejudice, or fraud.
    2. Same— Chanhe in Grade op Streets.
    Under Laws 1ST. Y. 1883, c. 113, providing that “whenever the grade of any street * * * in any incorporated village in this state shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, * * * or shall injure or damage the real property adjoining, ” the owner may have a commission appointed to assess damages, etc., though the owner has sold and conveyed to the village the land on which the street lies, “for the purpose of opening and maintaining a public highway over and across the premises, and for no other purposes, ” he is entitled to damages for any change in the grade of such street, the deed only giving the right to use the land, and not to change the grade.
    3. Same—Grade Established by User.
    Such statute applies to streets whose grade has been established by long user, as well as those whose grade has been officially fixed by resolution.
    4. Same—Procedure.
    The objection that a street, whose grade has been changed, does not come under such statute, must be made when the motion is made for the appointment of commissioners, and not on appeal from their award.
    Appeal from special term, Westchester county.
    Eleanor J. Bartlett petitioned for the appointment of commissioners to assess her damages resulting from a change in the grade of a street in the village of Tarrytown, under Laws V. Y. 1883, c. 113, which provides that “ whenever the grade of any street * * * in any incorporated village in this state shall be change or altered, so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining,” the owner may have a commission appointed to assess the damages sustained. The village had bought and received a deed from plaintiff for the land, “for the purpose of opening and maintaining a public highway * * * over and across the premises, * * * and for no other purposes.” The commissioners were duly appointed, and from the order appointing them the village appealed. The order was affirmed by the general term, (5 N. Y. Supp. 240,) and the commissioners proceeded to assess the damages. From their award, and from an order confirming the same, the village of Tarrytown now appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    J. S. Millard, for appellant. L. T. Hale, for respondent.
   Pratt, J.

This is an appeal from an award for damages allowed the plaintiff by reason of a change of grade in a street fronting upon the plaintiff’s land. No questions of irregularity in the appointment or in the proceedings of the commissioners are raised. The principal question is whether or not the damages are excessive. With this subject courts cannot interfere, unless the commissioners infringe some rule of law in the course of their proceedings, or fix the damages at an amount so grossly excessive as to indicate passion, prejudice, or fraud.

The counsel for the defendant very ingeniously contends that this case does not fall within the statute allowing damages for a change of grade, for the reason that a grade had never been officially fixed for John street, and hence could not be changed. We think, however, that this argument is too fine for practical use. There are many streets in all cities where the "grade has never been established by resolution, but has become established by long user. The natural grade may suit well enough for years, but'finally the authorities may see fit to change it. Now, can it well be said that the statute was not intended to apply to such cases? The statute is one giving a remedy, and it ought to be liberally construed. People v. Lacombe, 99 N. Y. 49, 1 N. E. Rep. 599. It was the intention of the legislature to afford damages to persons who were injured by. changing the grade in front of their premises, and the law does not restrict the damages to streets the grade of which had been previously established by resolution, and no good reason seems apparent why there should be any such restriction. A party might be damaged just as seriously, so that the reason of the passage of such a law might apply as strongly, as in the case of altering a grade in a street which had been previoulv fixed by resolution of the authorities.

We also think this question should have been raised when the motion was made for the appointment of commissioners, and that the decision of that motion concludes the defendant upon this proceeding.

Neither do we think that a giving of the deed by the petitioner cuts off her remedy for damages, under the statute. The deed only carried right to use the land in the street, and the changing the grade was an entirely distinct matter. The damages are for injury to petitioner’s adjoining land, and arose some time after the deed was given.  