In the Matter of the Application of F. V. R. Stillman, Respondent, v. Village of North Olean, Appellant

In the Matter of the Application of F. V. R. Stillman, Respondent, v. Village of North Olean, Appellant. Fourth Department, January 11, 1911. Real property — change of grade in village streets — damages — estoppel — notice. A landowner injured by a change in the grade of-a village street is not estopped from claiming damages therefor under section 159 of the Village Law, because he joined in a petition for paving the street, if at the time of his'signature the plans had not been made and he was told by the village trustees that the construction would not cause any appreciable change in the grade and the paving could have been done without such change. In assessing the damages to such landowner caused by a change of grade allowances should be made for benefits received. Where the excavation of a street and the laying of a pavement were done under an entire contract, the sixty days within which a claim for damages must be presented, as required by the statute, does not begin to run until the work is completed, for until that time alterations may be made-in the grade. Appeal by the defendant, the City of Olean, as successor in interest of the village of North Olean, from an order of the Supreme Court, made at Special Term and entered in the office of the cleric of the county of Cattaraugus on the 16th day of December, 1909. Henry Donnelly, for the appellant. Dana L. Jewell, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: The petitioner and respondent lipón this appeal -seeks to recover damages to his premises in changing the grade of a street upon which the premises front. The proceeding is brought under section 159 of the Village Law (Gen. Laws, chap. 21 [Laws of 1897, chap. 414], as amd. by Laws of 1901, chap. 68; revised in Consol. Laws, chap. 64; Laws of 1909, chap. 64.) At the .time the grade was changed and the proceedings instituted the village of North Olean was in existence, and the street in question was one of the streets of that village. By chapter .369 of the Laws of 1908 the village of North Olean was merged in the city of Olean, its territory included within the bounds of the city, and all the liabilities of the village imposed upon the city. The city now contests the claim of the petitioner. The change of grade seems to have been occasioned by the paving of the street, but the trial judge iinds, and the evidence seems to support his conclusion, that the change was not a correction of irregularities existing in the grade before the street was paved, hut was a change of the general grade. It is now contended that because the petitioner joined in the petition for paving the street he-is estopped from claiming damages for changing the grade. I think not. . At the time the petition for paving was made and presented to the trustees of the village the plans therefor had not been made, and the trial judge finds that the petitioner was told by the trustees that the construction of the pavement would not cause any appreciable change in the grade of the' street that would damage his property, and that, he'signed the petition relying upon that statement. Moreover, it does not appear that the paving of the street could not have been done without making ’ so great, a change in the grade as was made, although it is not at all improbable that the best interests of the village as a whole required the cutting down of the street and change of grade. Section 159 of the Village Law empowers a village to change the grade of a street, but provides that; “ 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.” ' And it further provides that a claim . for damages may be presented within sixty days after such change of grade is effected. It permits the board of trustees to compromise the claim, or if the claim is not compromised an application may be made for the appointment of commissioners, as was done in this case. ' Other ¡irovisions relating to the procedure are contained in the' act, but they have no relation to the question involved upon this appeal. There is evidence to sustain, the finding that the change in .the' grade injuriously affected the premises, but in view1 of some of the testimony upon the question of damages, it may be proper to suggest that in determining that question the statute requires the commissioners to make an allowance for the benefits, if any, derived by the claimant from the improvement; The‘point is made on behalf of the appellant city that the claim was not presented within sixty days- after the change of grade was effected. The determination of that question depends upon whether the time for the- presentation of the claim commenced to run immediately after the street was cut down, or after the brick had been laid and the improvement completed. Until the brick Were laid and the improvement completed, the grade could be changed. The cutting down of the street and the laying of the pavement was one •entire piece of work — that of paving the street — and I think the change of grade was effected when the work was completed; and so it was held in Phipps v. Village of North Pelham (61 App. Div. 442). The Order should be affirmed, with costs. AH concurred. Order affirmed, with ten dollars costs and disbursements.