
    In the Matter of the petition of The Church of our Lady of Mercy.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    1. Municipal Corporations — Villages—Liability for change of grade OF STREET — LAWS 1883, CHAP. 113.
    A village is liable under chapter 113, Laws 1883, for damages caused by the change of grade of a street, although the existing grade may not have been established by resolution. Such grade may be established by general use.
    
      2. Same.
    The act of 1883 applies to all villages, though inconsistent with a local charter previously enacted.
    Appeal by the village of Portchester from an order confirming the report of commissioners appointed under chap. 113 of the Laws of 1883, to ascertain and determine the damages sustained by the petitioner by reason of the change and alteration of the grades of certain streets lying in front of and adjacent to petitioner’s lands in the village of Portchester.
    The change of grade in question was effected by the New York, New Haven & Hartford Railroad Company, with the consent and by the authority of the village of Portchester, under an agreement to indemnify said village against damages. The petitioner’s premises have a frontage of 149 feet on Broadway, the street so cut down, and the main buildings on said premises, consisting of a church and rectory, front thereon. The grade of this street has been cut down from eight to ten feet, and this change has resulted in'rendering the property entirely inaccessible from that side, and making it unsightly.
    The commissioners of appraisal viewed the premises and heard the testimony offered by both parties, and after deducting and offsetting the value of all benefits and improvements, as required by chap. 281 of the Laws of 1884, fixed the petitioner’s damages at-the sum of $6,000.
    
      Close & Robertson and H. D. Donnelly, for app’lt; Miller & Wells (Jas. A. Briggs, of counsel), for resp’t
   Pratt, J.

The amount of the award is abundantly sustained by the evidence.

Several witnesses, well qualified to judge, testified in favor of a larger sum, and the award is rather below the amount fixed by most of the witnesses.

The appellant argues, tiiat as there does not appear to be any record evidence that the grade of one of the streets interfered with had ever been legally established, no damages could be legally allowed for the chancre.

. One answer to this objection is, that it does not appear that any such damage entered into the award.

But we also think that the change of grade contemplated by the act of 1883, and for which damages are given to a property owner, refers to an existing grade, though it may not have been established by resolution. In other words, a grade may be established by general use.

The appellants argue, with great force, that the law of 1883, being a general law, inconsistent with the local village charter previously enacted, will not be allowed to have such an effect as practically to repeal the local law. But the question must be regarded as settled, so far as this court can do it, by the case of Stack, 50 Hun, 385; 21 N. Y. State Rep., 953.

All the objections now urged were then passed upon by the court

We are still of the opinion that the village is liable in damages .for the injury shown, and that the petitioner pursued the proper course to obtain relief.

Judgment affirmed, with costs.

Barnard, P. J., concurs.  