
    In the Matter of the Application of William J. Ives, Respondent, for the Appointment of Commissioners to Appraise Damages for the Grading and Macadamizing of the Gravel Road in the Town of Ridgeway, Orleans County, New York, Appellant.
    Fourth Department,
    March 5, 1913.
    Highways—proceeding to recover damages caused by grading ■ and macadamizing highway — appeal — record — when court cannot consider merits—appointment of commissioners—Highway Law, section 59, construed — recovery of damages although highway not curbed.
    Where the record on an appeal from an order confirming the report of commissioners appointed to appraise damages caused by the grading of a highway does not include a ease or a case and exceptions, nor the evidence taken before the commissioners, the appellate court cannot consider the merits.
    
      It seems, moreover, that on such record the appellate court cannot review the interlocutory order appointing the damage commissioners although the notice of appeal states an intention to bring that order up for review.
    
      It seems, that in a proceeding under section 59 of the Highway Law to recover from a town damages caused by the grading and macadamizing of a highway, the court should determine the sufficiency of the petition as a presentation of material facts necessary to entitle the petitioner to the appointment of commissioners, even if no preliminary objection has been made by the town.
    
      It seems, that where an affidavit made by the superintendent of highways controverts material statements of the petition, the court cannot appoint commissioners and direct them to determine those issues.
    Although section 59 of the Highway Law authorizes a recovery of damages by an adjoining owner where a highway is “graded and macadamized from curb to curb by the authorities of the town ” a recovery may be had, even though the road graded and macadamized was not in fact curbed.
    Appeal by the Town of Ridgeway, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 5th day of July, 1912, confirming the report of commissioners appointed to appraise the damages alleged to have been sustained by the petitioner, William J. Ives, by reason of grading and macadamizing by the authorities of said town of a public highway of said town to which lands owned by said petitioner are adjacent, with notice of an intention to bring up for review an order of said court in said proceeding entered in said clerk’s office oh the 19th day of October, 1911, appointing said commissioners, and also an order entered on the 26th day of January, 1912, denying the motion made on behalf of said town to resettle the order appointing said commissioners.
    
      Irving L'Hommedieu, for the appellant.
    
      Le Roy J. Skinner [Ryan & Skinner, attorneys], for the respondent.
   Robson, J.:

This proceeding was begun by the claimant, the respondent William J. Ives, to recover of the town of Ridgeway, pursuant to the provisions of section 59 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) damages which he alleged he had sustained as the owner of lands adjacent to a public highway of said town by reason of the grading and macadamizing of such highway by the authorities of that town. The record on appeal does not include a case, nor a case and exceptions, and none seems to have been made. The printed papers on appeal contain no exception taken in behalf of appellant. The final order appears also to have been made and based among other things upon the evidence taken before the appraisal commissioners; and yet none of this evidence appears in the record. We cannot, therefore, consider the merits of the appeal from the final order.

The validity of the order or interlocutory judgment appointing commissioners is also assailed on this appeal, notice of an intention to bring it up for review having been given in the notice of appeal from the final order. Section 59 of the Highway Law provides that “ all proceedings subsequent to the appointment of commissioners shall be taken in accordance with the provisions of the Condemnation Law, so far as applicable.” It is apparent, therefore, that the procedure on appeal thereafter should conform to and be governed by the Condemnation Law in that regard which provides a complete method of taking an appeal in such case. Section 3375 of the Code of Civil Procedure prescribes the procedure on appeal from a final order and provides that the interlocutory judgment by which commissioners have been appointed may be reviewed on an appeal from the final order, “ if the appellant states in his notice that the same will be brought up for review and exceptions shall have been filed to the decision of the court or the referee, and a case or a case and exceptions shall have been made, settled and allowed, as required by the provisions of this act for the review of'the trial of actions in the Supreme Court without a jury.” As has been said, neither a case, nor a case and exceptions, nor even an exception, is in the record. It may be doubted, therefore, if appellant is in any position to obtain a review of the interlocutory judgment or order appointing commissioners. It is true that this judgment recites that the counsel for the town objected preliminarily “that the claimant is not entitled to damages or to a commission to appraise the same under the facts in this case,” but the form of the objection or the facts upon which such objection was based do not appear except by inference from the statement above quoted. However, even if no preliminary objection had been made by the town, the court would have been required to determine the sufficiency of the petition as a presentation of the material facts necessary to entitle petitioner to the appointment of commissioners. (Matter of Borup, 89 App. Div. 183.) If the preliminary objection was pointed only to the sufficiency of the facts stated in the petition, it was unavailing for the reason that the petition seems to contain a statement of all the facts, which, taken as true, presumptively entitled the petitioner to the appointment of commissioners under the provisions of section 59 of the Highway Law. Though the town might have controverted by answer any of the statements of material facts appearing in the petition no answer was filed by it. There was, however, without objection by petitioner, read in its behalf on the hearing an affidavit made by its superintendent of highways. Even if this affidavit be regarded as pro tanto an answer in behalf of the town which would raise an issue of fact so far as it controverts the material statements of the petition, yet it does not seem to present such an issue. It may be conceded that, if a material issue of fact was thereby presented, such issue should be first determined by the court; and it would be error to appoint commissioners and direct the determination by them of such issue. (Matter of Caffrey, 52 App. Div. 264; Comesky v. Village of Suffern, 179 N. Y. 393; Matter of Borup, supra.) The statute (§ 59), so far as material to this branch of our inquiry, provides as follows: “ 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. A person claiming damages from such change of grade must present to the town board of such town a verified claim therefor within sixty days after such change of grade is effected.” Claimant states in his petition, among other things: “That said Town of Ridgeway acting through its town superintendent of highways commenced the grading, repairing and macadamizing of the public highway in front of deponent’s [petitioner’s] premises about July 1st, 1910, and excavated said highway a depth of many feet the entire width of the traveled part of the same in front of deponent’s premises, and completed the grading and macadamizing of the same on or about May 10th, 1911.” It also alleges service of a copy of his claim for damages upon the supervisor of the town within sixty days after the completion of the grading and macadamizing. The only statements in the affidavit of the town superintendent which tend to controvert any of the allegations of the petition are that the appropriation made by the town for regrading the highway in question was all expended and the work discontinued as early as August 6, 1910; and that the highway is not and has not been curbed. But it is therein stated that in May, 1911, he did at the direction of the town board place a top dressing of crushed stone or macadam in the roadway in front of claimant’s premises, but that the same ‘"'did not reach from curb to curb, nor has there ever been any curb in the highway at such point.” This statement not only does not tend to contradict petitioner’s allegation that the town authorities completed the grading and macadamizing of the highway on or about May 10, 1911, but seems to tend to confirm it. If the grading and macadamizing of the highway was not completed until May 10, 1911, no suggestion is made that the notice of claim was not timely presented. It is, however, urged that because it appears that the highway has no curb that it could not be graded and macadamized, as the statute phrases it, from curb to curb.” But in interpreting a statute its words and phrases are to be given their ordinarily accepted meaning for the purpose of effectuating the intent of the statute. It is well known, that almost all country highways and many streets in rural towns and villages are not in fact curbed. That is, they do not have a line of joined stones set upright at the outer edge of a walk, or at one of the edges of a street or .road, forming the inner side of a gutter; a row of curbstones. ” (Cent. Diet.) But in the usual acceptation of the meaning of the language used it would ordinarily be understood as the equivalent of the expression of the width of the used or traveled part of the highway. If this is what the statute means, then the allegation in the petition meets its requirements and the highway was for the purpose of this proceeding alleged to have been graded and macadamized from curb to curb.

It follows that the appeal should be dismissed, and as it was brought up upon the papers required on, and has been at all times treated and argued as an appeal from an order, with ten dollars costs and disbursements.

All concurred.

Appeal dismissed, with ten dollars costs and disbursements.  