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 and Parties Interested in Lands Claimed to Be Injured by the Grade of Sycamore Street and Walden Avenue at the New York Central and Hudson River Railroad Belt Line Claimed to Be Owned by The Barber Asphalt Paving Company and the Lehigh Valley Coal Company. (Proceeding No. 97.) The City of Buffalo and Others, Appellants; The Barber Asphalt Paving Company and Others, Respondents

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 and Parties Interested in Lands Claimed to Be Injured by the Grade of Sycamore Street and Walden Avenue at the New York Central and Hudson River Railroad Belt Line Claimed to Be Owned by The Barber Asphalt Paving Company and the Lehigh Valley Coal Company. (Proceeding No. 97.) The City of Buffalo and Others, Appellants; The Barber Asphalt Paving Company and Others, Respondents. Eminent domain — eity of Buffalo — change of grade of railroad at street crossing— award to abutting owners. Appeal by the Grade Crossing Commissioners, New York Central and Hudson River Railroad Company and the City of Buffalo from the report of the commissioners appointed herein dated June 17, 1913, and the order of the Special Term of Brie county confirming the same, entered in the Brie county clerk’s office April 23, 1914, which report awarded to the Barber Asphalt Paving Company, Parcel Ho. 1, $60,000; International Rail-way Company, Parcel Ho. 2, $19,000; August Uihlein, Parcel Ho. 3, $11,161; Lehigh Valley Coal Company, Parcel Ho. 5, $19,500; Conrad Weitz, Parcel Ho. 6, $10,400; Lumen Bearing Company, Parcel Ho. 7, $36,420; Henry P. Burgai'd Company, Parcel Ho. 11, $48,172; Louis Wollenberg, Parcel Ho. 12, $12,500. [MAJORITY — Per Curiam:] Per Curiam: The appeals in this proceeding challenge the correctness and legality of the awards of compensation to the several respondents whose real property is deemed to be affected by the change of grade of Sycamore street and Walden avenue at or near the Hew York Central and Hudson River Railroad Belt Line in the city of Buffalo, which change of grade has been made by authority of chapter 345 of the Laws of 1888 and its several amendments. The commissioners received testimony as to the supposed damage to the lands of the respondents by reason of the change in the grade of the railroad upon its own right of way and have included such damages in their awards, together with the consequent loss of branch or switch tracks. Since the report of the commissioners was made and confirmed, the Court of Appeals has held that damages cannot be awarded for such change in the grade of the railroad. (Matter of Grade Crossing Comrs. of Buffalo, 209 N. Y. 139.) In view of this decision, it is manifest that it was error for the commissioners to receive the evidence as to the effect of the change of the railroad grade upon respondents’ property and to award damages on that account. We are also of opinion that in the decision referred to it has been held that although awards for damages due to change of the railroad grade had been previously sustained by that court in Matter of Grade Crossing Comrs. (59 App. Div. 498; affd., without opinion, 168 N. Y. 659), still no rule of property was affected by the ovérruling of such former decision, and that following what we understand to be the later decision of that court above referred to, we must hold that no rule of property prevents the application in this case of the rule of damages so laid down. For these reasons the order confirming the commissioners’ report must be reversed and the report of the commissioners set a side and a new hearing ordered before new commissioners to be appointed ' at Special Term. All concurred. Report and order, so far as appealed from, reversed, and a new hearing ordered before new commissioners, with costs to appellants to abide the final award of costs.