
    The People of the State of New York ex rel. Mary E. Crane, Relator, v. Robert B. Adam and Others, as Grade Crossing Commissioners of the City of Buffalo, Respondents.
    
      Buffalo grade crossing commissioners—when they must apply for the appointment of commissioners to appraise damages.
    
    The commissioners appointed under the Buffalo Grade Crossing Act (Laws of 1888. chap. 345, as amd. by Laws of 1890, chap. 255) are obliged to apply for the-, appointment of commissioners to appraise the damages alleged to have been sustained by a property owner in consequence of a change of grade made-under the authority of the act, if the proofs adduced before them show that the property owner has suffered any damage whatever.
    The commissioners cannot determine the extent of those damages, nor can they refuse to make the application to the court upon the assumption that the damages sustained are trivial.
    Certiorari issued out of the Supreme Court and attested on the 22d day of September, 1902, directed to Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo,, requiring them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had in refusing to grant the petition of the relator to make application for the appointment of commissioners to appraise the damages alleged to have been sustained by her in consequence of the change of grade of Seneca and Peabody streets, in the city of Buffalo, under the direction of said commissioners.
    
      William B. Frye, for the relator.
    
      Spencer Clinton, for the respondents.
   Spring, J.:

The petitioner is the life tenant of a lot at the intersection of Peabody and Seneca streets in the city of Buffalo. The premises have a frontage on Peabody street of one hundred and fifty, and on Seneca street of twenty-eight feet, and there are two frame cottages upon the lot. In the construction of a viaduct on Seneca street the grade in front of these premises was changed on both of these streets.

The ascent to the viaduct on Seneca street commences twenty, two and two-tenths feet easterly from the westerly lot line on Peabody street, and in that distance the elevation is one and one-tenth feet or nearly four and one-half per cent grade. The elevation extends along the lot frontage on Peabody street for sixty-seven and three-fourths feet, but the grade is only two and one-half" per cent. These streets along this lot were substantially level before the improvement mentioned.

Section 12 of the Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws of 1890, chap. 255) contemplates the payment of damages for injuries to premises by reason of the change of grade in carrying out the plan of the grade crossing commissioners. The claim of the petitioner is that the change of grade has lessened the value of her premises, and one specific item to which her proof was directed was that the surface water runs along the ramp on each street and collects in front of her lot.

The grade crossing commissioners heard the proofs presented on behalf of the relator and which made out a prima facie case that her premises were injured to some extent by reason of the change of grade in constructing the viaduct. The commissioners also produced witnesses of their own motion tending to controvert the position of the relator that she had sustained damages. After the hearing the commissioners denied the application of the relator. In this we think they erred.

The investigation intended by the act to be made by the grade crossing commissioners is initiatory in its character "and is undertaken with the view of securing some basis for the application to the court for the appointment of commissioners to appraise the damages. (People ex rel. Myer v. Adam, 74 App. Div. 604.)

This court has held that the only remedy for the ascertainment and award of these damages is found in the act itself. (Matter of Myer v. Adam, 63 App. Div. 540; affd., 169 N. Y. 605, and same case cited above.)

It was not, therefore, designed that the commissioners should try and determine the merits and thus by their decision perhaps cut off any relief to a lot owner whose premises had been injured by the improvements made in the execution of the plan prescribed.

If the proofs adduced show that the petitioner has suffered any damages whatever it is incumbent upon the grade crossing commissioners to set in motion the legal machinery prescribed in the act to have them appraised and awarded to her. They cannot determine the extent of those damages, nor can they refuse to make the application to the court upon the assumption that the damages are trivial. In Matter of Grade Crossing Commissioners (154 N. Y. 561) the question was raised that the Special Term could refuse to appoint commissioners to appraise the damages if the “ injury was slight and the damages caused thereby apparently of little consequence.” The Court of Appeals held that the court was obliged to-appoint the commissioners and analyzed the act in support of its position.

If no legal liability exists in favor of the petitioner for damages to his premises it may be that the grade crossing commissioners may decline to institute the proceeding for the creation of the tribunal to assess them. (Matter of Grade Crossing Commissioners, 166 N. Y. 69, 76.) If, for instance, the injuries complained of although due to the carrying out of the plan contemplated by the Grade Crossing Act, arise by reason of the improvement or opening of another street and the consequent diversion of travel from the street on which the premises injured front, probably the grade crossing commissioners could refuse to apply for commissioners, on the ground that the petitioner was not “ lawfully entitled to compensation.” If placed upon that ground the court could review such determination purely as a legal question. If, however, the question resolves itself into one of fact over the extent of the damages suffered, there is no authority in the grade crossing commissioners to erect an insuperable barrier to their ascertainment and award by refusing to apply for the appointment of commissioners. It is not their province to try and determine that question.

The decision of the grade crossing commissioners should be reversed, and said commissioners directed to apply to the Special Term for the appointment of commissioners to ascertain and appraise the damages, if any, sustained by the relator, with fifty dollars costs and the disbursements of this proceeding to her.

All concurred, except McLennan, J., not voting.

Decision of grade crossing commissioners reversed, and said commissioners directed to apply to the Special Term for the appointment of commissioners to ascertain and appraise the damages, if any, sustained by the relator, with fifty dollars costs and disbursements to her.  