In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of, etc., Lands Claimed to Be Injured by the Change of Grade of Main Street at New York Central and Hudson River Belt Line and Claimed to Be Owned by Mary H. Jewett and Others. (Proceeding No. 102.) The Grade Crossing Commissioners of the City of Buffalo and Others, Appellants; Lucia C. Halbert, Respondent

In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of, etc., Lands Claimed to Be Injured by the Change of Grade of Main Street at New York Central and Hudson River Belt Line and Claimed to Be Owned by Mary H. Jewett and Others. (Proceeding No. 102.) The Grade Crossing Commissioners of the City of Buffalo and Others, Appellants; Lucia C. Halbert, Respondent. Fourth Department, October 8, 1912. Railroads—elimination of grade crossings in city of Buffalo—damages — lessening of shipping facilities. In determining the amount of damages under the Grade Crossing Act of the city of Buffalo, where there has been a change of grade in front of adjoining premises, the improvement as a whole must be considered, and if the value of .the adjoining premises has been diminished, the owner is entitled to all of the damages resulting therefrom. If the value of lands, adapted to industrial purposes, has been lessened by the removal of switch tracks and shipping facilities, such facts may be considered in awarding damages. Foote and McLeotan, JJ., dissented, with opinion. Appeal by the Grade Crossing Commissioners of the City of Buffalo and others from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 9th day of November, 1911, confirming the report of commissioners of appraisal herein, and also from the report of said commissioners of appraisal filed in the office of the clerk of the county of Erie on the 23d day of October, 1911. Irving R. Templeton and Spencer Clinton for the appellants the Grade Crossing Commissioners. Alfred L. Becker, for the appellant New York Central and Hudson River Railroad Company. Jeremiah J. Hurley and Clark H. Hammond, for the appellant City of Buffalo. Charles Diebold, Jr., for the respondent Lucia C. Halbert. [MAJORITY — Kruse, J.;] Kruse, J.; In. eliminating the grade crossing of the New York Central Belt Line at Main street, in the city of Buffalo, it became necessary to change the grade of the street. The tracks were depressed about twenty-five feet and a viaduct constructed, carrying the street over the railroad. Commissioners were appointed in this proceeding to ascertain the compensation to' be made to the owners of the lands for damages resulting from that improvement. The award for parcel 2 is challenged by this appeal as excessive. That parcel has a, frontage of about one hundred and eighty feet on Main street, extending to a point twenty-one and one-half feet from the railroad right of way. The change of the street grade immediately in front of the premises is slight; but it is contended that the grade crossing improvement as a whole has seriously lessened the value of the premises. Before the improvement there was a switch track extending to Main street. That has been removed and, even if relaid in the cut, it would be inaccessible from Main street or from the lands adjoining the railroad. The owner contends that before the changes were made the lands were well adapted for industrial purposes and that their value has been materially lessened by cutting off the shipping facilities at this point. • That view is supported by testimony and the appraisal com-. missioners who were made acquainted with the conditions seem to have taken the same view; although their award is much less than the amount of the damages fixed by the experts. In determining the amount of damages • under the Grade Crossing Act (Laws, of 1888, chap. 345, as amd.), where there has been, a change of grade in front of adjoining premises, the improvement as a whole must be considered, and if the value of the adjoining premises has been diminished thereby, the owner is entitled to all of the damages resulting therefrom. (Matter of Grade Crossing Commissioners, 6 App. Div. 327.) It is argued here, as it was in the case of Matter of Grade Crossing Commissioners (59 App, Div. 498; affd., 168 N. Y. 659), that no damages are recoverable resulting from the depression of the ■ track, eliminating switching facilities; but the award was upheld in that case, although the factory was not in operation and the switches had not been used for some time. It is true that there the premises were immediately adjoining the railroad, while here there is an intervening parcel of land. But aside from possible private switch connections to these premises, the switch extending to within a few feet of the premises was taken up and all switching facilities have been eliminated at this point. Access to the railroad has been cut off and all facilities for receiving and delivering freight there have been destroyed. If the value of these lands has been lessened by lack of railroad facilities, resulting from the improvement, it would seem that that fact may be properly taken into account in determining the amount of the damages. I think that is in accord with our previous decisions under the Grade Crossing Act of the city of Buffalo, where railroad facilities were cut off or impaired by the improvement and were taken into account in making the award (Matter of Grade Crossing Commissioners, 59 App. Div. 498; Matter of Grade Crossing Commissioners, 111 id. 909; Matter of Grade Crossing Commissioners, 146 id. 885; affd., 203 N. Y. 628); and it is in accord with the decisions of the courts of other States as well. (New York, New Haven, etc., R. R. Co. v. Blacker, 178 Mass. 386; South Park Commissioners v. Ayer, 231 Ill. 211.) While the award seems large, I think in view of the advantage which the commissioners had ■ in determining that question, we would hardly be justified in setting it aside. The order should, therefore, be affirmed, with costs. All concurred, except McLennan, P. J., and Foote, J., who dissented in an opinion by Foote, J. [DISSENT — Foote, J. (dissenting):] Foote, J. (dissenting): I dissent. It appears from the testimony of the witnesses . and from the opinion of the commissioners that a considerable part of the $5,000 award to the owners of parcel No. 2 is for damage to that parcel because, after the railroad tracks are depressed, it will not be possible to run a private switch track from the railroad across the intervening lands to this property. Eespondent’s lot does not abut upon the railroad right of way at any point. It has never had a switch track and could not have one without acquiring from private owners the right to lay the proposed switch track across their lands. The consent of such private owners may never be secured, and there is no power to compel it by condemnation or otherwise. Hence, I think the supposed injury to respondent’s lot, because deprived of the possibility of a private switch track, is too remote and speculative to be the basis of an award of damages. The order appealed from, so far as it confirms the award to respondent in respect of parcel No. 2, should be reversed and such award vacated, and the proceeding remitted to the same commissioners to make a new award, allowing no damages for loss of a possible private switch track from the railroad across intervening land to respondent’s lot, with separate bills of costs of this appeal to. each appellant appearing separately. McLennan, P. J., concurred. Order affirmed, with costs.