Caruso v. Town of Montclair

• Decision Date: 05 March 1917
• Citation: 90 N.J.Law. 255,100 A. 339
• Parties: CARUSO et al. v. TOWN OF MONTCLAIR.
• Court: New Jersey Supreme Court

100 A. 339

90 N.J.Law. 255

CARUSO et al.

v. TOWN OF MONTCLAIR.

Court of Errors and Appeals of New Jersey.

March 5, 1917.

Appeal from Supreme Court.

Action by Nicola Caruso and another against the Town of Montclair. From a judgment of nonsuit (88 N. J. Law, 405, 98 Atl. 070), plaintiffs appeal. Affirmed, with costs.

Gaetano M. Belfatto and Wilbur A. Heisley, both of Newark, for appellants. Hartshorne, Insley & Leake, of Jersey City, for appellee.

KALISCH, J. The precise question presented for decision, on this appeal, is whether an owner of a lot in a street built upon can properly maintain an action for damages sustained by him against a municipality, for a change made in the grade of the street, where it appears that the consent of a majority of the owners, in interest, of the lots fronting on the part of the street altered, had not been obtained, according to the requirement of section 73 of the Road Act, C. S. p. 4461, and where it further appears that such change was made, in order to eliminate a grade crossing, under the Act of 1901, p. 116.

The facts are these: The plaintiffs were the owners of a lot on Bay street, in the town of Montclair, upon which stood a three-story building. The tracks of the Delaware, Lackawanna & Western Railroad Company crossed Bay street at grade. In order to eliminate this crossing, the town and railroad company made an agreement by which the town should by ordinance change the grade of the street. This was done, and as a result the street was depressed, in front of the plaintiffs' property, the entire width thereof, to a depth of about 15 feet. The plaintiffs were awarded damages by the assessors who were authorized to make the award. Plaintiffs refused to accept the award and brought an action for damages against the town. The trial judge directed a nonsuit, and it is from that judgment that the plaintiffs appeal.

Section 70 of the Road Act, C. S. p. 4461, gives an action to the landowner injured by any change of grade, if brought within 12 months. Section 73 of the same act provides that no change of grade shall be made in a street built upon, without the consent of the majority of the owners, in interest, of the lots fronting on the part of the street altered, nor without paying damages. These two sections make provision for an action for change of grade if brought within 12 months, and make a change of grade where the street has been built on unlawful without the consent of the majority.

Section 72...