
    Sarah Bernstein, Respondent, v. The City of Mount Vernon, Appellant.
    Second Department,
    December, 1905.
    Municipal corporation — act of municipal authorities in changing grades presumed to be lawful — burden on landowners claiming damage for such change to show want of authority.
    There is a presumption that municipal authorities in changing the grade of city streets act in accordance with the law, and an owner of real property having title to the center of the street who claims damage on the ground that the change of grade was unauthorized, must show affirmatively that the law was not complied with, or a nonsuit is proper.
    
      Appeal by the defendant, The City of Mount Yernon, from an order of the County Court of Westchester county-, entered in the office of the clerk of the county of Westchester-on the 31st day of August, 1904, denying the defendant’s motion to set aside the veir diet of a jury theretofore rendered in favor of the plain tiff and for a, new trial made upon therminutes.
    
      Arthur H. Johnson [Isaac N. Mills with him on the brief], for the appellant.
    
      William J. Marshall, for the respondent.
   Rich, J.:

A recovery was had in this action upon the theory that .the defendant, in altering the grade of South Seventh avenue, proceeded without authority of law; and its action being illegal and wrongful it became liable to the plaintiff,, her .title extending to the center of the street, for the damages sustained by her as the.result thereof,. - Authority is conferred upon the ■ defendant to alter or change the grade of any street or- highway, or any part thereof. (Laws of 1892, chap. 182, §§ 168,187.). The latter section also provided for compensation to property owners' injure^ by such improvements and the‘maimer in which their damages shall be ascertained and determined.. For an injury occasioned as the result of a change or alteration of an existing grade, in a proceeding commenced under the provisions of this section, a property owner has' no remedy except that therein provided. And in a .case where all the requirements of this section have been complied with, and the common council has proceeded tinder its provisions,- a property owner 'injured by the improvement cannot maintain an action to recover damages. The remedy provided by this section cannot-be invoked except in cases of lawful change of grade, but where the alteration is made without complying with the -requirements, of section 170 the action of the municipal .authorities is illegal and void, and. the remedy of the property owner is by action to recover the ■damages sustained. (Folmsbee v. City of Amsterdam, 142 N. Y. 118.)

I think the evidence was sufficient to establish an existing grade of Smith Seventh avenue prior to making the improvement and alteration in question. If the defendant in altering this grade proceeded under its charter provisions, this action cannot be maintained. The presumption is that the municipal authorities acted in accordance with the law, and this, presumption continues until the contrary is made to appear. (Matter of Mayor [ Vanderbilt Avenue], 95 App. Div. 533.) The burden was thus cast upon the plaintiff, of showing affirmatively that the common council in making this improvement did not comply with the provisions of section 187. of the statute. This she failed to do, and no duty rested upon the defendant to establish compliance with the charter provisions until the plaintiff had at least made a prima faeie case establishing her cause of action. The plaintiff gave no evidence upon this subject, and in this respect she failed to. establish a cause of action and defendant’s motion made at the close of the plaintiff’s case ought to have been granted, and the exception taken to the refusal of the learned trial .court presents an error which requires a reversal.

The order denying defendant’s motion for a new trial must be reversed and a new trial granted, costs to abide the event.

Woodward and Jenks, JJ., concurred; Miller, J., concurred in result.

Order denying motion for a new trial reversed and motion for new trial granted, costs to abide the event. '

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.  