Cook v. State ( 1941 )

Ryan, J. (concurring).

It has been held that where the State, in eliminating a grade crossing, changes the grade of a street in New York city it must respond in damages to an abutting owner whose property has been injured because section 951 of the Greater New York Charter supplies a liability already existing in law which the State has assumed by section 7 of chapter 677 of the Laws of 1928 (the New York city act). (Mirro v. State of New York, 285 N. Y. 678, affg. 260 App. Div. 525, affg. 172 Misc. 963.)

It has been held that the liability for damages for change of grade imposed upon cities by section 99 of the Second Class Cities Law has not been extinguished but has been preserved and that this is a liability already existing in law which the State has assumed by section 9 of chapter 825 of the Laws of 1928 (the Syracuse act).^* (Solkat Realty Corp. v. State of New York, 172 Misc. 981; affd., 262 App. Div. 944.)

It is now proposed to hold that the liability for damages for change of grade imposed upon cities by section 99 of the Second Class Cities Law is a liability already existing in law which the State has assumed by section 6 of chapter 678 of the Laws of 1928 (the general act).

In the Mirro case the “ grades of Central avenue and of Seventy-eighth street had been established by the city of New York on November 16, 1917, and the building had been erected to conform to the then existing grade.” Section 951 of the Greater New York Charter provided for damages to an abutting owner who had “ built upon or otherwise improved his property in conformity with the grade of any street or avenue established by legal authority.” (Italics mine.)

In the record of the Solkat case it does not appear in what manner the grade of South Geddes street became established but the trial seems to have proceeded upon the theory that it had been legally established and that the claimant’s buildings and improvements conformed to it.

It is now proposed to hold that the words “ legally established,” appearing in section 99 of the Second Class Cities Law, include the establishment of the grade of a city street by “ user, recognition and acquiescence for a period in excess of thirty years.”

It is now proposed to hold that the first sentence of section 99 of the Second Class Cities Law, viz., “ The grade of any street shall not be fixed or established except by direction of the common council,” does not limit the application of the sentence immediately succeeding it which provides for compensation when a street grade is changed. Moreover, it is proposed to hold that this provision for compensation, contained in the said second sentence, inures to the benefit of the owner of property abutting on a street, the grade of which has been established by user, recognition and acquiescence, when that grade is changed not by the city but by the State of New York. To so hold means to disregard the words “ except by direction of the common council ” and the word “ also ” as they appear in the second sentence. To so hold means to say that when the State directs the change of grade it assumes the liability which would be the city’s if the city did the work.

In these proposed holdings I concur. I do so with full appreciation that the mandate of section 99 of the Second Class Cities Law is not as forceful as that of section 951 of the Greater New York Charter. The latter is now interpreted to have “ created liability whenever for any purpose an established grade is changed so as to interfere with adjacent buildings ” and “ The State in elimination projects is liable in the first instance therefor ” (Mirro v. State of New York, supra (Hill, P. J., 3d Dept.].) At the same time, the liability provided by section 99 of the Second Class Cities Law is less restricted than that provided by the Elmira City Charter (Laws of 1906, chap. 477, § 80) “ which applies only when the common council intends to take property and has declared ‘ by resolution its intention.’ ” And we are concurrently holding that the force of the affirmances in the Mirro and Solkat cases overrules the previous interpretation ^* of the Elmira City Charter. (Baker v. State of New York, 176 Misc. 928.)

To find liability in section 99 of the Second Class Cities Law is not to challenge the decision of the Court of Appeals when it affirmed a judgment of dismissal by this court of a claim which arose in the city of Yonkers. (Lewis v. State of New York, 258 N. Y. 568.) As we have heretofore commented, the work of elimination there did not effect a change of grade but a diversion of the street leaving access from one direction as it had been.^† Each case must be determined upon its own facts. Here, there was not only a change of grade of Prospect avenue at its intersection with Eldredge street, not only a diversion of its course from a point sixty feet north from the northeast corner of claimant’s property, not only the closing of Prospect avenue with a retaining wall at claimant’s north line, but in addition to these changes Prospect avenue is closed at the point where the railroad formerly crossed it at grade, which point is south of claimant’s property but within the block. Thus, claimant cannot go out of his property to the next intersecting street in either direction except through the new diverted and depressed section of Prospect avenue which begins opposite a point about midway in claimant’s property fine.

The recital of the physical changes brings the thought that, in line with well-known authorities, claimant was entitled to have that portion of Prospect avenue upon which his property abutted, kept open in at least one direction. Folger, J., said in Fearing v. Irwin (55 N. Y. 486): “ Though one public way to property is closed, if there is another left, the property owner sustains no actionable damage.” (See, also, Holloway v. Southmayd, 139 N. Y. 390, 411; Reis v. City of New York, 188 id. 58, 71, 72; Matter of Joiner Street [City of Rochester], 177 App. Div. 361.)

I am aware that claimant’s counsel stated “ the street shut off south of claimant’s premises and north of the railroad tracks. That part we have withdrawn,” and “ I stated at the outset that we didn’t intend to proceed on the theory the crossing had been shut off.” Nevertheless the point south of claimant’s premises where the street was shut off was the location of the pre-existing crossing at grade. This was done away with. All of the other changes were due to and followed in course upon this elimination. How can this element be disregarded in any consideration of the case? I do not think it can. It seems to me that it is an integral part of claimant’s cause of action, so much so that the words of claimant’s counsel, hereinabove quoted, should not be construed as a waiver since he continues to assert his client’s rights and his demand for damages.

Therefore, while concurring in the result arrived at, namely, that this claimant is entitled to recover because the elimination of a grade crossing in the city of Binghamton has caused damage to his property not acquired as provided in the general grade crossing elimination act (Laws of 1928, chap. 678), it seems to me that in addition to the reasons expressed in the opinion of the presiding judge, there is another element of damages which should sustain an award in this particular case and which has not been relinquished.

* Syracuse, although having a population in excess of 175,000 in 1925, was regarded as a second class city. (See Second Class Cities Law, § 4; State Const, former art. XII, § 2, as amd. 1923, now art. IX, § 11; Op. Atty.-Gen. 1932, 45 St. Dept. Rep. 470.)

* See Matter of Baker v. Mayor, etc., of City of Elmira (156 Misc. 243); West 158th Street Garage Corp v. State of New York, (168 id. 822).

† See opinions by this court in West 158th Street Garage Corp., Solkat and Mirro cases (supra).