Comesky v. Village of Suffern

• Decision Date: 22 November 1904
• Citation: 72 N.E. 320,179 N.Y. 393
• Parties: COMESKY v. VILLAGE OF SUFFERN.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 393

72 N.E. 320

COMESKY

v.VILLAGE OF SUFFERN.

Court of Appeals of New York.

Nov. 22, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank Comesky against the village of Suffern and others. From a judgment of the Appellate Division (81 N. Y. Supp. 1049) affirming an order of the Special Term confirming report of commissioners appointed to assess damages sustained by reason of the change of grade, the village appeals. Reversed.

Henry Bacon, Joseph Merritt, and Frank S. Harris, for appellant.

Arthur S. Tompkins, for respondent.

MARTIN, J.

Independently of the village law (Laws 1897, p. 420, c. 414, § 159) the respondent possessed no right to recover damages caused by the change of grade complained of. There was no encroachment upon or actual interference with his premises, and the improvement was made for the benefit of the public and in a proper manner. Under these circumstances, in the absence of any statute providing for compensation, remote or consequential damages arising from the change of grade could not be recovered. Radcliff's Ex'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357;Fries v. N. Y. & H. R. R. Co., 169 N. Y. 282, 283,62 N. E. 358, and cases cited. Thus the respondent's rights and remedies are dependent upon the provisions of section 159, which provides: ‘If a village has exclusive control and jurisdiction of a street or bridge therein, it may change the grade thereof. If such change of grade shall injuriously affect any building or land adjacent thereto, or the use thereof, the change of grade to the extent of the damage resulting therefrom, shall be deemed the taking of such adjacent property for a public use. A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected. The board may agree with such owner upon the amount of damages to be allowed to him. If no agreement be made, within thirty days after the presentation of the claim, the person presenting it may apply to the Supreme Court for the appointment of three commissioners to determine the compensation to which he is entitled. Notice of the application must be served upon the board of trustees at least ten days before the hearing thereof. All proceedings subsequent to the appointment of the commissioners shall be taken in accordance with the provisions of the condemnation law, so far as applicable, except that the commissioners in fixing their award may make an allowance for benefits derived by the claimant from such improvement.’

Although there were several interesting and important questions discussed by counsel, still, with our view of the case, the only one we deem it necessary to consider is whether the order appointing commissioners to assess the damages claimed by the respondent was authorized, or whether it was void for want of jurisdiction. As we have already seen, this proceeding was wholly statutory. Both the right sought to be enforced and the remedy provided for its enforced and the remedy provided for its enforcement were created by the same section of the statute. By the provisions of that section certain facts and conditions must precede the right to recover any compensation, and must be established and determined before the remedy becomes available, so far as the appointment of commissioners was concerned. As the right claimed was for compensation for damages sustained by change of grade, until the fact that there had been a change of grade, resulting in damages to the respondent, was determined by the court, it possessed no authority or jurisdiction to appoint commissioners to assess them. In other words, before the court had any jurisdiction to grant an order appointing commissioners, the fact that there had been such change of grade, followed by damages to the respondent, and that there had been a presentation to the board of a verified claim therefor within [179 N.Y. 396]60 days after such change was effected, was necessary to be established and determined.

An examination of this section of the statute discloses that the establishment of several facts must precede the jurisdiction of a court to appoint commissioners: (1) The village must have exclusive control and jurisdiction of the streets; (2) it must have changed the grade thereof; (3) such change must have injuriously affected the respondent's building, or the land adjacent thereto, or the use thereof; and (4) the person claiming damages must have presented to the board a verified claim therefor within 60 days after such change was effected. In this case, while the petition of the respondent alleged facts which, if established and determined in his favor, would have entitled him to an order appointing commissioners, yet, an answer was interposed which admitted some of the facts necessary to be established and denied others. It denied that there was any material or substantial change of grade; denied that the respondent's premises, or the use thereof, were injuriously affected thereby; denied that his claim...