
    J. Bradley Scott et al., Respondents, v. Benjamin McClung, as Mayor of the City of Newburgh, et al., Appellants.
    
      Scott v. McClung, 161 App. Div. 890, affirmed.
    (Argued February 3, 1916;
    decided March 24, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 6, 1914, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term in an action for an injunction. The question involved is the right of the city of Newburgh to permanently improve Grand street, one of its principal thoroughfares, by laying a modern pavement thereon. The charter of the city contains a provision in substance that after any street shall have been once graded according to the grade line fixed by order of the city council, the grade of that street shall not be changed except upon petition. The respondents seek to enjoin the improvement, alleging that the contemplated improvement violates this charter provision, because it involves a change of grade in the street to be improved, and such change of grade has not been petitioned for. The appellants contend that the changes in the surface of the street incident to the laying of a modern pavement thereon do not constitute a change of grade within the meaning of that term, and that in any event it does not appear that the grade of the street as established by order of the city council is in any degree affected by the contemplated improvement.
    
      Graham Witschief, Corporation Counsel (John B. Corwin of counsel), for appellants.
    
      Howard Thornton, W. F. Cassedy and J. B. Scott for respondents.
   Judgment affirmed, with costs, on the ground that according to the findings unanimously affirmed there was a change of grade; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscock, Chase, Collin, Hogan, Cardozo and Seabury-, JJ.  