Fuller v. City of Mt. Vernon

• Decision Date: 13 May 1902
• Citation: 63 N.E. 964,171 N.Y. 247
• Parties: FULLER v. CITY OF MT. VERNON.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 247

63 N.E. 964

FULLER

v.CITY OF MT. VERNON.

Court of Appeals of New York.

May 13, 1902.

Appeal from supreme court, appellate division, Second department.

Action by James K. Fuller against the city of Mt. Vernon. Judgment for plaintiff was affirmed by the appellate division (72 N. Y. Supp. 1103), and defendant appeals. Affirmed.

This was an action at law, brought to recover damages inflicted upon the real rpoperty of the plaintiff by an alleged illegal change of the grade of Archer avenue in the city of Mt. Vernon, upon which the plaintiff's premises abutted. The plaintiff alleged in his complaint, among other things, that the grade of said avenue was established in or about the year 1892, and that the avenue was used at that grade in 1895, when he built a house upon his abutting premises and graded them to conform to the grade of the avenue as previously established; that in 1900 the defendant wrongfully, and without complying with the provisions of its charter relating to the alteration of grade, so changed the grade of said avenue as to raise it from one to three feet above that established in 1892, and there by caused damage to the plaintiff to the extent of $1,000. The answer contains substantially a general denial. The jury found a verdict in favor of the plaintiff, and, the judgment entered thereon having been unanimously affirmed by the appellate division, the defendant appealed to this court.

William J. Marshall, for appellant.

Arthur M. Johnson, for respondent.

VANN, J. (after stating the facts).

The charter of the defendant confers power upon its common council to establish the grade of streets, highways, and sidewalks. Laws 1892, c. 182, § 180. It also authorizes that body ‘to alter the grade of any street or highway or any part thereof,’ and provides the method of procedure. This method, among other things, includes the making of a profile showing the intended alteration, filing it with the city clerk, and publishing a notice that said profile has been so filed, together with a notice of the intention of the common council ‘to make such alteration.’ At any time within one year after the date designated in the notice for the hearing of objections, the common council, by a vote of three-fourths of all its members, may ‘so alter such grade.’ If, within six weeks after the vote ‘altering the grade of any street or highway,’ the owner of any building shall file with the clerk a claim for damages ‘arising from such alteration,’ the common council is required to fix an assessment district and apply to the proper court for the appointment of commissioners ‘to estimate and assess such damages.’ Section 187. Said section also provides that ‘no building or other structure shall be deemed to have sustained damage by reason of such alteration of grade, unless such building or structure shall have been built with reference to or to conform with the previously established grade.’ Upon the trial the plaintiff read in evidence various resolutions, passed by the common council in 1892 and 1893, to establish the grade of Archer avenue, which is a public highway about 1,500 feet long, with three city blocks on either side. A map or profile was made and filed with the city clerk, and a resolution finally adopted establishing the grade of the avenue in accordance therewith. Plans and specifications were prepared to carry the resolution into effect, competitive proposals received, and one of the same was accepted. A contract was thereupon entered into, performed, and paid for, the final resolution having been adopted on the 6th of June, 1893. In 1900 the common council took action to regulate, grade, pave, and otherwise improve Archer avenue. A contract for the improvement was entered into, the contractor performed the work, and the city paid for it. There was a conflict in the evidence as to the extent of the change of grade, and it was admitted by the defendant upon the trial that it did not comply with section 187 of the city charter in altering the grade of the avenue. The plaintiff built a house in 1895 to conform to the grade of the street as established in 1892, and the effect of the alteration of grade in 1900 was such that he was obliged to raise his house and fill in his lot so as to conform to the new grade. The lowest estimate of any witness as to the expense of doing this work was $600, which is the amount of the verdict in his favor. The alteration of grade was effected in connection with the paving of the street with macadam, the construction of gutters, and the setting of curbs, for which an assessment was made upon the property of the plaintiff. He did not seek to set this assessment aside, but asked to recover the damages caused to his premises by the change of grade. As we read the defendant's charter, there cannot be an alteration of the grade of a street within the city limits after the grade thereof has once been duly established, and the abutting owners have built with reference thereto, without compensating them for the damages caused by the alteration. If the defendant had proceeded regularly to alter the grade pursuant to the requirements of its charter, it would have been obliged to cause such damages to be assessed and paid. As it proceeded irregularly, the plaintiff lost no right by its failure to obey its charter, but could maintain an action at law to recover the damages. While the charter does not in express terms make provision to this effect, we think that by authorizing the grade to be established, and then providing a method for thereafter altering the grade and providing the procedure, the method so provided was exclusive, and that the defendant could not lawfully change the grade without...