
    The People of the State of New York, Plaintiff, v. Mattie Dawson, Defendant.
    (Supreme Court, Brie Special Term,
    November, 1914.)
    Highways — liability of abutting owners for change of grade — right of commissioners to ascertain compensation to he made for taking land for highway purposes — Code Civ. Pro., § 3371.
    The state is liable only to an abutting owner for a change of grade of a highway by virtue of some statute.
    The report of commissioners to ascertain compensation to be made for the taking of real estate for state highway purposes, so far as an award therein for consequential damages depending upon a change of the grade of a state highway, should be set aside, but the court at Special Term cannot make such determination, as under section 3371 of the Code of Civil Procedure the court is without power to strike out part of an award and confirm the report as modified, but the report will be set aside and a rehearing directed before the same commissioners with instructions to make no award or appraisal of damage by reason of the change of the grade of the highway in front of defendant’s premises.
    Motion by defendant for an order confirming report of commissioners to ascertain compensation to be made to defendant for the taking of real estate for state highway purposes.
    James A. Parsons, Attorney-General, for plaintiff.
    William E. Webster, for defendant.
    Hoyt & Spratt, for New York Central & Hudson River R. R. Co.
   Brown, J.

The commissioners appraised defendant’s damage by reason of the taking of a triangular piece of land ten feet wide at its west and fifty-three feet long, six one-thousandths of an acre, extending across the north end of defendant’s residence lot abutting on the highway the sum of $675. The commissioners also appraised defendant’s damage to the residue of her property on account of the taking the above mentioned strip for the use of a highway and the raising of the grade of the highway adjacent to the north side of the triangular strip so taken by the building of an approach to a railroad bridge, such grade to be raised from zero at the east line of defendant’s premises to about seven feet at the west line of defendant’s premises at the sum of $750 ; a total award of $1,425.

Upon the defendant’s motion to confirm said report the plaintiff and the railroad object to the last item of the award upon the ground that it is based upon and solely consists of consequential damages occasioned by the change of the grade of a part of the highway, asserting that there is no authority creating a liability upon the part of the state for damages occasioned an abutting property owner by the raising of the grade of a state highway. The defendant contends that by the provisions of section 91 of the Railroad Law the expense incurred in changing the grade of an existing highway to eliminate a railroad grade crossing is to be borne by the state and the railroad; that the state commissioner of highways is authorized by sections 91 and 92 of the Railroad Law to institute condemnation proceedings to acquire lands necessary for such grade crossing elimination, that the damages occasioned by such necessary taking of such lands for such purpose are a part of the expenses incurred in such grade crossing elimination; that by section 59 of the Highway Law the damages occasioned an abutting property owner by the change of the grade of a highway are the subject of appraisal and award; that it necessarily follows that the last item of award by the commissioners in those proceedings for consequential damages to defendant’s remaining property is a legitimate charge and item of the expenses for which the state and railroad are liable, and hence properly and legally awarded herein. The difficulty with the argument seems to be that the damages provided for in section 59 of the Highway Law are only to be collectible when occasioned by a change of the grade of a town highway. The language of the section is “In any town in which a town highway shall be repaired, graded and macadamized from curb to curb by the authorities of the town the owner or owners of the land adjacent to the said highway shall be entitled to recover from the town the damages resulting from any change of grade.” To invoke the benefits of this statute the claimant must show that the change of grade was made by the town authorities. Matter of Baynes, 140 App. Div. 735.

In this case it was held that the statute quoted had no application to highways constructed by the state under the so-called Good Roads Law. The state is not liable at common law to an abutting owner for a change of grade of a highway, and is only made liable by virtue of some statute. Warner v. State of New York, 132 App. Div. 611; 204 N. Y. 682.

The change of grade for which defendant claims and has been awarded damages by the commissioners is on a state highway. Highway Law, § 120. It is not on a town highway. No authority has been furnished establishing a liability on the part of the state for the last item of the commissioners’ award. Such item is not a part of the expense incurred by the state in eliminating the grade crossing, and the railroad is only liable for a share of what expense the state incurs in such elimination. The award of $750 as damages to the defendant for the change in grade of the highway was unauthorized.

The report of the commissioners ought to be confirmed as to the award for the value of the land taken, and set aside as to the award for consequential damages depending upon the change of grade of the highway; but such determination cannot be made by the Special Term. By section 3371 of the Code of Civil Procedure the only power of this court is to confirm the report or set it aside; the report cannot be modified by striking out part of the award and confirming as modified. Matter of Central New York T. & T. Co., 36 App. Div. 553; Matter of Town of Guilford, 85 id. 207; Matter of Johns v. Village of Salamanca, 129 id. 721.

The report of the commissioners will be set aside and a rehearing directed before the same commissioners, with instructions to make no award or appraisal of defendant’s damage by reason of .the change of the grade of the highway in front of her premises.

Ordered accordingly.  