
    In the Matter of the Petition of John Borup, Respondent, for the Appointment of Commissioners to Assess Damages to His Property Resulting from a Change of Grade of Jefferson Place, in the Town of Eastchester, New York. Town of Eastchester and William D. Granger, as Supervisor of said Town, Appellants.
    
      Appraisal of damages for a change of grade in a town highway— a petition therefor must allege that it was previously graded and the ownership of adjacent land by the petitioner.
    
    In a proceeding instituted against a town under chapter 610 of the Laws of 1903, for the appointment of commissioners to determine the compensation to which the petitioner claims to be entitled by reason of a change in the grade of a highway in the town, it is necessary for the petitioner to establish that the highway has been previously repaired, graded and macadamized from curb to curb by the authorities of the town in accordance with section 69 of the County Law, and that the petitioner is the owner of land adjacent to the highway.
    Both these facts are jurisdictional, and if the answer of the town raises an issue in respect thereto, the issue must be tried before commissioners can be appointed.
    Appeal by the Town of Eastdhester and William D. Granger, as supervisor of said town, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of October, 1903, appointing commissioners under chapter 610 of the Laws of 1903.
    
      
      Isaac N. Mills, for the appellants.
    
      Alfred E. Smith, for the respondent.
   Goodrich, P. J.:

John Bor up, on petition, applied at Special Term for an Order' appointing three commissioners to determine the compensation to which he might be entitled by reason of a change of the grade of Jefferson place in the town of Eastchester. The notice of the application was addressed to William D. Granger, supervisor of the town, and served upon him together with a copy of the petition. The Special Term appointed the commissioners, and the supervisor and the town appeal from the order.

The proceedings are taken under chapter 610 of the Laws of 1903 (adding § 11a to Laws of 1890, chap. 568), which provides, that “ in any town in which a highway has been or hereafter shall be repaired, graded and macadamized from curb to curb' by the authorities of the town in accordance with the provisions of section sixty-nine of chapter six hundred and eighty-six of the laws of eighteen hundred and ninety-two (the County Law), the owner or owners of the land adjacent to the said highway shall be entitled to recover from the town the damage resulting, from any change of grade,” The owner of such land must present to the town board a verified claim of his damage, and if he and the town board cannot agree upon the amount of his damages within thirty days, the owner “ may apply to the Supreme Court for the appointment of three commissioner to determine the compensation to which he is entitled. Notice of the application must be served upon the supervisor of the town.”

It is evident that certain facts must be established before commissioners can be appointed, and among them, whether the highway has been previously repaired, graded and macadamized from curb to curb by the authorities of the town in accordance with section 69 of the County Law, and whether the petitioner is the owner of land adjacent to the highway. Both facts, are essential to the jurisdiction of the court.

The petition alleged, first, that in March, 1901, the lawful authorities of the town, in accordance with section 69 of the County Law (See Laws of 1892, chap. 686, as amd. by Laws of 1900, chap. 12), caused the highway to be repaired, graded and macadamized from curb to curb, and in so doing changed the grade thereof; and, second, that the petitioner at the time of such change of grade was the owner of adjacent land.

The town filed an amended answer in which both of these allegations were denied. Thus an issue was raised upon which the town was entitled to trial before the court had jurisdiction to appoint commissioners to establish the damages, for if the highway had never before been graded or the road macadamized from curb to curb, or if the petitioner was not the owner of adjacent land, he was not entitled to compensation. This position is accentuated by the fact that the statute of 1903 requires notice of the application for commissioners to be given to the supervisor of the town.

This view renders it unnecessary to consider the other points raised by the appellants, and among them, the constitutionality of the statute, and compels a reversal of the order.

Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  