
    In the matter of the application of John McCall et al., Resp’ts, v. The Village of Saratoga Springs, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 24, 1890.)
    
    Villages—Change op grade op streets—Laws 1883, chap. 113; Laws 1884, chap. 281.
    To render a village liable for damages caused by the change of grade of a street, under chap. 113, Laws of 1883, as amended in 1884, it is not necessary that the grade should have been previously established by order or resolution.
    Appeal from an order of the special term, appointing commissioners to ascertain and appraise the damages if any sustained by the petitioners by changing the grade of Warren street and York avenue in the village of Saratoga Springs.
    
      J. L. Henning, for app’lt; Wm. If. McCall, for resp’ts.
   Landon, J.

Warren street and York avenue were for several years prior to 1887 public highways, and cared for as such by the village authorities. Their grade was the natural grade of the surface of the earth, except as slight inequalities in the natural surface had been removed by throwing the earth from the higher to the lower places. The petitioners had built their houses on the streets while the natural grade continued. In 1887 the village authorities established a different grade from the natural one, and changed the surface of the street accordingly, making excavations, in so doing, as the petitioners allege, to their injury.

Chapter 113, Laws of 1883, as amended by chapter 281, Laws 1881, authorizes the appointment of the commissioners “ whenever the grade of any street * * * in any incorporated village shall be changed or altered” to the injury of the owners, of houses already existing on adjoining lots. The village contends that this means a grade previously ordered and made, and not the natural grade which has been acquiesced in without express order or adoption; and that the action of the authorities in 1887 was the first establishment of the grade, and not a change or alteration of a previous grade. Every street has a grade whether established by law or accepted from nature. The act does not distinguish between the two grades. The mischief to be remedied may be as great in one case as in the other. Prior to the statutes in question, it was held that, in the absence of a statute, the lot owner could not recover from -the municipality for consequential damages to an adjoining lot caused by an authorized grading or change of grade in a street. Radcliff's Ex'rs v. Mayor, 4 N. Y., 196; Mills v. Brooklyn, 32 id., 489. These statutes are remedial, and should be construed to promote the remedy for such consequential damages in favor of the parties mentioned in the statute. The statute has received this contraction in the second department. Matter of Wiley, 52 Hun, 382; 24 N. Y. State Rep., 273.

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Mayham, J., concur.  