
    Eleanor J. Bartlett, Resp’t, v. The Village of Tarrytown, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    1. Municipal corporations—Change of grade of streets.
    To render a municipal corporation liable for injuries to real estate caused by a change of grade of a street it is not necessary that the grade thereof should have been previously established by resolution.
    2. Same.
    An objection that the statute does not apply to the proceeding should be raised on the motion for the appointment of commissioners; the decision of that motion concludes the corporation.
    3. Same—Estoppel.
    The giving of a deed of real estate to the city for the purpose of opening and maintaining a highway or street thereon does not estop the grantor from claiming damages to his adjoining land occasioned by a change of grade thereafter made.
    Appeal from an award of damages for changing the grade of John street in the village of Tarry town from three to seven feet.
    It is claimed that the statute does not apply as the grade had never been established by resolution, and that plaintiff was estopped by a deed given by her to the city of land for the purpose of laying out the street thereon.
    
      J. S. Millard, for app’lt; L. T. Yah, for resp’t.
   Pratt, J.

This-is an appeal from an award for damages allowed the plaintiff by reason of a change of grade in a street fronting upon the plaintiff’s land.

Eo questions of irregularity in the appointment or in the proceedings of the commissioners are raised.

The principal question is whether or not the damages aré excessive. With this subject courts cannot interfere unless the commissioners infringe some rule of law in the course of their proceedings or fix the damages at an amount so grossly excessive as to indicate passion, prejudice or fraud.

The counsel for the defendant very ingeniously contends that -this case does not fall within the statute allowing damages for a change of grade for the reason that a grade had never been officially fixed for John street, and, hence, could not be changed. We think, however, that this argument is too fine for practical use.

There are many streets in all cities where the grade has never been established by resolution, but has become established by long user.

The natural grade may suit well enough for years, but finally -fclie authorities may see fit to change it. Eow, can it well be said that the statute was not intended to apply to such cases.

The statute is one giving a remedy, and it ought to be liberally construed. Wood v. Lacombe, 99 N. Y., 49.

It was the intention of the legislature to afford damages to persons who were injured by changing the grade in front of their premises, and the law does not restrict the damages to streets the grade of which had been previously established by resolution, and no good reason seems apparent why there should be any such restriction. A party might be damaged just as seriously, so that the reason of the passage of such a law might apply as strongly as in the case of altering a grade in a street which had been previously fixed by resolution of the authorities.

We also think this question should have been raised when the motion was made, for the appointment of commissioners, and that the decision of that motion concludes the defendant upon this proceeding.

Neither do we think that a giving of the deed by the petitioner cuts off her remedy for damages under the statute. The deed only carried the right to use the land in tlmstreet, and the changing the grade was an entirely distinct matter.

The damages are for injury to petitioner’s adjoining land and arose sometime after the deed was given.

Award of commissioners affirmed, with costs.

Barnard, P. J., concurs.  