Cook v. State , 46 N.Y.S.2d 15 ( 1944 )

— Appeal by the State of New York from a judgment of the Court of Claims, entered on the 19th day of February, 1942, for $3,000 damages and interest. The claim is for consequential damages to real property not acquired, in the elimination by the State of the Prospect Avenue grade crossing of the Erie and Delaware, Lackawanna & Western Railroads in the city of Binghamton. The damage was caused to respondent’s property by the lowering of the grades of both Eldredge Street and Prospect Avenue. The amount of damage is not in question. The issues are whether the respondent was entitled to consequential damage under the Grade Crossing Elimination Act applicable to Binghamton which was a second class city, and whether or not the grades of Prospect Avenue and Eldredge Street had been previously established. The changes in the grades of these two streets and the consequential damages are not in dispute. The right of the respondent to such damages is found in section 99 of the Second Class Cities Law and the applicable Grade Crossing Elimination Act. (L. 1926, ch. 233, amd. L. 1927, eh. 445; L. 1928, ch. 678.) This same question was passed upon by this court in East River Savings Bank v. State of New York (266 App. Div. 494). The evidence also clearly shows that the grades of the two streets in question had been previously established both by the city authorities and by user. Judgment affirmed, with costs. The court reverses the following findings of fact contained in the court’s decision below: Nos. 40, 65, 66 and 77. The court makes the following findings of fact and conclusions of law requested by the claimants -below: Nos. 21, 25, 30, 31, 32, 33, 40, 41, 42 and 43,, and conclusions of law Nos. 1, 6, 7, 8, 11 and 19 and 20 except that the amount therein should be $3,000. The court reverses the following findings of fact: Nos. 8, 34, 35, 36, 37 and 38 contained in Delaware, Lackawanna & Western Railroad’s requests to find; and Nos. 29, 42, 54, 55 and 56, contained in the Erie Railroad’s requests to find. The court disapproves the following conclusions of law: Nos. 8, 9, 11, 12 and 17, contained in the Delaware, Lackawanna & Western Railroad’s requests to find, and No. 2 contained in the Erie Railroad’s requests to find. Hill, P. J., Bliss, Heifernan and Schenek, JJ., concur. [176 Misc. 947.]