Folmsbee v. City of Amsterdam

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 118,36 N.E. 821
• Parties: FOLMSBEE v. CITY OF AMSTERDAM.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 118

36 N.E. 821

FOLMSBEE

v.CITY OF AMSTERDAM.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, third department.

Action by Peter Folmsbee against the city of Amsterdam. From a judgment of the general term (21 N. Y. Supp. 42) affirming a judgment for plaintiff on report of referee, defendant appeals. Affirmed.

Edward J. Maxwell, for appellant.

W. B. Dunlap, for respondent.

EARL, J.

This action was brought by the plaintiff to recover damages to his lots bounded on Spring street, in the city of Amsterdam, caused by changing the grade of the street, and also to vacate an assessment made upon the lots for sidewalks constructed in front thereof, on Spring and Kimball streets. The plaintiff recovered a judgment for his damages, and vacating the assessment, and that judgment is brought under review by this appeal.

1. Except as some statute may provide for compensation to an abutting owner whose land is injured by a change in the grade of a street, lawfully made, he is without remedy; and, however serious his damages may be, he can receive no compensation. Dill. Mun. Corp. § 990, etc.; Radcliff's Ex'rs v. Mayor, 4 N. Y. 195. But where the title of the abutting owner extends to the center of the street, whoever, without authority of law, illegally and wrongfully excavates or otherwise interferes with the street, is responsible to him for the damages. Here the city caused the street adjoining the plaintiff's lots to be cut doen several feet, and unless this was legally done, by authority of law, it is responsible to him for his damages. It claims that it was authorized to change the grade of the street under its charter. Laws 1885, c. 131, § 95. That section provides that the common council shall have power to cause any street ‘to be graded, paved or repaired,’ and to determine by resolution what part or portion, if any, not exceeding 25 per centum, of the expense thereof, shall be paid by general tax upon the city, and what part of portion shall be defrayed by special assessment upon such portions of the real estate, and against the owners and occupants thereof, as the assessors of the city shall deem more immediately benefited by the improvement. In the same section it is provided, however, that ‘when the grade of a street has been established and the street graded accordingly, the grade shall not be changed and the street graded according to the changed grade, except upon petition of the owners of a majority of the lineal feet fronting on the part of the street to be graded, or unless compensation be made to the owners of property injured by the regrading, such compensation to be determined by agreement or by the three commissioners to be appointed by the county court of Montgomery county or the supreme court,’ etc.

Abutting owners are frequently seriously injured by changing the grades of streets in front of their property; and, as has been stated, without some special provision of law, they are without remeby. This provision in the charter of the defendant was inserted to give relief in such cases. It was intended to provide for all cases where the previously extablished grade of a street shall have been changed so as to cause damages to the abutting owners, and the statute must be so construed as to give effect to the policy thus indicated. Before the grade of a street which has been once established can be changed, two things must occur: There must be the petition of the owners of a majority of the lineal feet fronting on the street to be graded, and compensation must be made to the owners of the property injured by the regrading. The literal reading of this portion of the section would require only one of these two things,-either the petition or the compensation. But, to effectuate the plain purpose of the statute, the word ‘or’ should be ‘and’ or ‘nor’, and such a change in a word, to give effect to the plain intention of the legislature, is sanctioned by many precedents. Unless the language be so read, an abutting owner might be opposed to the improvement of a street in front of his premises, and yet, if a majority of the owners petitioned for the improvement, he would be without any remeby for the damages thereby caused to him. His damages are just as great whether the improvement has been petitioned for or not,...