
    William Sweeting, Respondent, v. The City of Rochester, Defendant, Impleaded with The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    July 24, 1908.
    Pleading — complaint stating action against railroad for damages from change in street grades-joint tort feasors.
    A complaint, which in substance alleges that the defendant City of Rochester enacted an-ordinance-permitting the defendant railroad to substitute a steel ■ bridge for a bridge previously existing over a city.stréet, and providing for the.lowéringof the. established grade of said street, that the city required the railroad to do the work 'and indemnify the city against any legal liability, and that the railroad with the consent of the city and under its supervision and direction, but without’ the consent of the plaintiff, an- abutting, landowner,, changed the bridge and lowered"tiie grade in front of the plaintiff’s premises to his damage, states a cause of action against the railroad as a joint tort feasor with the city. ' . ■ ■
    Keuse, J., and McLennan, P. J.; dissented, with opinion.
    Appeal by the defendant, The. Hew York Central and Hudson Biver-Bail road Company, from an. interlocutory judgment Of the Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of Monroe on the 14tli day of April, 1908, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the said defendant’s demurrer to the complaint.
    Harris, Havens, Beach & Harris and Edwin A. Nash, for the appellant.
    
      John Van Voorhis’ Sons and Eugene Van Voorhis, for the respondent.
   Williams, J.:

The interlocutory judgment should he affirmed, with costs, with leave to defendant to plead over on payment of the costs of this appeal and of the demurrer.

The complaint alleges that the plaintiff' is the owner of the property in question fronting. on Orchard street, in the city of Rochester ; that the grade of that street has been legally established and recognized generally for over forty years; that the common council of the city of Rochester enacted an ordinance by which the defendant railroad company was permitted to substitute a steel girder bridge for the bridge then existing on its railroad over Orchard street, which required the lowering of the grade of said street, the ordinance providing the clear head room under the bridge should be thirteen feet, to be obtained by lowering the street under the bridge; that the city required • the railroad company to do all the work subject to the laws of the State and the ordinances of the city, and that .the railroad company indemnify the city against any legal liability' the city might incur.

It is further alleged that the railroad company, with the consent of the city and under its supervision and direction, but without the plaintiff’s consent, did the work, changed the bridge, and lowered the grade in front of plaintiff’s premises from one to three feet, to his injury and damage, for which judgment was demanded.

The railroad company alone demurs to the complaint, claiming:

First. That the plaintiff cannot bring an action at law for his damages; his remedy is in the proceeding under the statute for the government of cities of the second class. (Laws of 1898, chap. 182, as amd. by Laws of 1901, chap. 552.) -
' Second. That the railroad company is not liable in any event for the changing of the grade of Orchard street.
Third. And if liable at all it is liable as indemnitor and not primarily liable;

First. At common law no liability existed on the part of' á .municipality to the owner of real estate for injuries sustained by reason of the change of grade in streets adjoining his premises. (Heiser v. Mayor, etc., of New York, 104 N. Y. 68, and cases therein referred to.)

The statute, section 30 of the act as to second-class cities above referred to, provides, among other things, that the common council shall not change the grade of any street which has been legally established, except on compensation for damages done, to be ascertained as damages are ascertained, under the Condemnation Law, for lands taken. The manner of fixing the compensation under a statute is exclusive, provided the owner may originate the proceeding or the city does originate it. (Heiser v. Mayor, etc., of New York, supra, and cases therein referred to.)

In Calking v. Baldwin (4 Wend. 667) either party could institute the proceedings for ascertaining the damages, and it was held no action would lie.

In Matter of Torge v. Village of Salamanca (176 N. Y. 324) the owners could institute the proceeding, and it was said the statutory remedy was exclusive.

In Folmsbee v. City of Amsterdam (142 N. Y. 118) and Fuller v. City of Mount Vernon (171 id. 247) it was held that where the change of grade had been illegally made the statutory remedy was not applicable and an. action couldYe maintained.

It is claimed here that the- grade was illegally changed', because no proceeding was taken by the city to ascertain the damages and none were paid, and the city alone could institute the proceeding. It is not disputed.but that if the city should institute the proceeding the action would be stayed until the damages were ascertained therein.

It would seem, therefore, that the city, if it changed the grade of the street, can be proceeded against by action to recover damages occasioned to plaintiff by such change of grade.

The railroad company could not commence any proceedings under the statute to ascertain plaintiff’s damages. And as to this company the only theory upon which the action can be maintained is that the city lowered the grade illegally, and the railroad company aided and assisted in doing the unlawful act.

The railroad company, however, claims that it did the work of lowering the grade, as principal, and not as aiding or assisting the city; that it had the legal right to do so with the assent of the city, and the plaintiff is not entitled to any damages 'by reason of such change of grade. . And this leads us to consider the second, ground of demurrer above stated.

Second. The railroad company claims that it erected or changed the bridge in question under the provisions of the Railroad Law (Laws of 1890, chap. 565); and for the purpose of restoring the street to its former state or to such state as not to have unnecessarily impaired its usefulness, as required by the statute, it lowered the grade as it legally might do and is not liable for any alleged damages suffered by plaintiff by reason thereof.

Section 11 of this statute provides among other things that no railroad corporation shall erect any bridge.or construct its road in, upon or across any street of any city without the consent of the corporation of such city; that every railroad corporation which shall build its road along, across or upon any street or highway, which the route of its road shall intersect or touch, shall restore the street or highway, intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its usefulness, and that any such highway may be carried by it under or over its tracks as may be found most expedient.

If all the city did or assumed to do was to give the assent underv this statute to the building or changing of the bridge, very likely it would have been guilty of no illegal act, and would not have been liable for damages. The railroad company might then have restored the street as provided by the statute, and not have been liable for damages either. But the allegation of the complaint is that the city directed the manner of changing the bridge, and expressly directed the Change of grade in the street and required it. to be done, and supervised the work and saw that it was done as directed. If this was trué, the city was responsible for the change of grade of the street the same as though it made the change itself.

The city should not have done this except upon ascertaining and paying plaintiff such damages as he suffered, arid for failure to provide for the payment of the damages the city is liable as for an illegal act on its part.

Third. There can be no doubt, that the railroad company having aided and assisted the city in such illegal act, is also liable for plain-, tiff’s damages as a joint Wrongdoer, ánd the claim that it is liable only .as an indemnitor is not well founded.

The complaint states a good cause of action against the railroad company.

Spring, J., concurred; Robson, J., concurred in the result only; McLennan, P. J., and Kruse, J., dissented in opinion by Kruse, J.

Kruse, J. (dissenting):

I do not understand that the necessity, or at least the propriety, of making the change in bridging the street for the railroad to cross over, and the consequent lowering of the grade of the street, is questioned. Bnt "it is pontend.ed that the payment. of damages to the adjoining owner, for damages done in lowering the grade, is a condition precedent before the grade can actually be changed. That, claim is founded upon the piro visions of section 30 of the White charter, which applies to the city of Rochester, and piro vides that the common council shall.not change the grade of any street which has been legally established, excepit upon the vote of. two-thirds of all the members of the common council, and also except upion eompiensation for damages doné, to be ascertained as damages are ascertained under the Condemnation Law for lands taken.

/ Assuming that this piro vision of the charter has full effect, regard less of the pirovisions of the Railroad Law, I am inclined to the opinion that it is not necessary to ascertain and pay the damages done to an adjoining landowner before changing.the grade of the street. The language of the section is u compensation for damages done,” not “ to bé done,” pire scribing the precise method by which the damages are to be ascertained. I do not say that proceedings may not be taken in advance to acquire the rights and easements of an adjoining landowner. The view which I take of this provision may at first seem over critical, but taking into account the difficulties which in many instances may be encountered in determining the damages in advance and the language of the statute itself, I think this view is the more reasonable.

The plaintiff brings this action upon the theory that the defendant is a wrongdoer. If that be true the action is well brought, but if the view I entertain is correct, the defendant was not a wrongdoer, and the only remedy which the plaintiff has is to have the damages ascertained under the Condemnation Law. The mere fact that the plaintiff may not institute the proceeding, I think, is answered by the suggestion that if the city itself does not proceed, he may require it to do so by mandamus. It can make no practical difference to the plaintiff whether he or the city institute the condemnation proceeding.

If I am right in the conclusion that the defendant was not a wrongdoer, it' follows, I think, that the plaintiff must resort to' the Condemnation Law for redress. (Matter of Torge v. Village of Salamanca, 176 N. Y. 324; Smith v. B. & A. R. R. Co., 181 id. 132, 142, 143; Matter of Melenbacker v. Village of Salamanca, 188 id. 370.)

I think the interlocutory judgment should be reversed and the demurrer sustained.

McLennan, P. J., concurred.

Interlocutory judgment affirmed, with costs, with leave to defendants to plead over upon payment of the costs of the demurrer and of this appeal. 
      
      See footnotes on pp. 877, 878.— [Rep.
     