
    In the Matter of the application of Simeon W. Smith, App’lt, v. The Village of White Plains, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Municipal corporations — Change op grade op street.
    An abutting owner has no vested interest in the grade of a street as established, and a change of grade is not the taking of private property. The right of an abutting owner to recover damages for such change of grade is wholly statutory.
    2. Same — Constitutional law.
    Chapter 315, Laws 1890, declaring that chap. 113, Laws 1883, shall not apply to alterations of highways in the village of White Plains, is not unconstitutional. The legislature had power to repeal the act of 1883, in whole or in part.
    Appeal from an order made by his honor Justice Barnard denying the application of the petitioner for the appointment of commissioners of appraisal, under chapter 113 of the Laws of 1883, to ascertain the amount of damage alleged to have been sustained by him in consequence of the changing of the grade of Chatterton street, in the village of White Plains.
    The street in question has been a public highway for many years. The petitioner’s lands lie on both sides of the highway. The grade of the street was changed, and this proceeding was brought for the appointment of commissioners of appraisal. The answer alleged that, by chapter 315 of the Laws of 1890, the village of White Plains was exempted from the provisions of chapter 113 of the Laws of 1883, the latter being the act under which the proceeding was commenced.
    The constitutionality of a portion of the new charter of the village of White Plains is thus brought in issue, and the court asked to pass upon the same. The village of White Plains was incorporated by chapter 351, Laws of 1866, and by § 6 of chapter 493 of the Laws of 1884, was declared to be a separate road district ; and the trustees of said village were given by law all the powers of commissioners of highways in towns, the latter provision still remaining in force.
    By chapter 315 of the Laws of 1890, said charter was amended as follows:
    § 20. The board of trustees shall also have power to change or alter the grade of any street, avenue, highway or bridge in said village (laid out or accepted by said village), and to grade and regrade the same, and the expense of such changing, altering, grading or regrading, and all damages to adjoining property occasioned thereby, or to the use thereof, shall be assessed upon the real property fronting on said street or avenue benefited thereby, in proportion to the amount of such benefit, by three disinterested resident freeholders of said village, to be appointed by the board of trustees. Such assessment shall be signed by the persons so appointed, and delivered by them to the board of trustees, who shall give public notice in two newspapers, published in said village, that the same has been so left with said board, and that the said board will on a certain day therein stated, which shall not be less than fifteen days from the date of the first publication of such notice, proceed to confirm the said assessment. During that period any person interested may appeal from the same to the said board of trustees, who may determine such appeal and alter such assessment in such manner as in their opinion justice may require. The same may be then confirmed by said board without further notice. All such assessments shall constitute a lien upon the lands and premises respectively upon which they shall be made. The freeholders appointed under the provision of this section to make such assessments shall receive for their services respectively the sum of five dollars per day. The provisions of chapter 113, of the Laws of 1883, entitled “ An act in relation to alterations of highways, streets or bridges, in incorporated villages,” and the acts amendatory thereof, shall not apply to the street, avenue, highway or bridge so changed or altered under the provisions of this section."
    
      Wilson Brown, Jr., for app’lt; H. T. Dykman, for resp’t.
   Pratt, J.

The appellant’s contention is based upon the idea that an abutting owner has a vested interest in the grade of a street as established, and that a change of grade is a taking of private property. We believe this to be an error.

The right of an abutting owner to recover damages for a change of grade in a street depends upon statute and in many, and perhaps most cities of the state, does not exist. Legislature had the power to repeal the law of 1883 in whole or in part.

We do not see that a land owner in White Plains has any more right to complain that he has lost the benefit of the act of 1883 than a land owner in Brooklyn has that he has never been allowed such relief.. The remedy provided for the White Plains land owner may be imperfect, but for similar injuries property holders in other localities have no remedy whatever.

Dismissing the petition on the grounds set forth was in effect sustaining a demurrer. We think there was a trial of the legal question.

Order affirmed, with costs.

Cullen and Brown, JJ., concur.  