#### In the Matter of the Claim of J. Warren Lawton, Respondent, *v.*The City of New Rochelle, Appellant, for Damages for Change of Grade of Centre Avenue in the Said City of New Rochelle (Formerly the Village of New Rochelle).

Second Department,

January 24, 1908.

Municipal corporation — damage to landowner by change of street grade — statutes relating to village not applicable after reincorporation as city — right to such damage wholly statutory — constitutional law— rights under statute not impaired by subsequent legislation.

Although a landowner conveyed lands to a village for a public street at a time when, by chapter. 113 of the Laws of 1883, as amended by chapter 281 of the ' Laws of 1884, he was entitled to damages for a change of grade, he cannot maintain a proceeding under said statute when a change in the grade of the street was made after the village had reincorporated as a city.

*833Such landowner has no vested constitutional right under said statute either to damages or to the procedure prescribed therein.

As, but for said statute which relates wholly to villages, the injury to an abutting owner by a change in' street grades is *damnum absque injuria,*no vested right was acquired under the statute, and when in the exercise of its plenary power the Legislature annuls a village charter and reincorporates it as a city, the injury by change of grade again becomes *damnum absque injuria.*

This is true although the charter of the city preserved the contracts, obligations and liabilities of the village and imposed them upon the city, because as the • change of grade was not made until after the reincorporation, no cause of action had “arisen or accrued” under said statute.

Moreover, assuming that an abutting owner had a vested'property right in the nature of an easement to have the street maintained at the grade first established, he had no vested right to have the damages resulting from an invasion thereof ascertained in the particular manner provided by said statute.

Rich, J., dissented on opinion below.

Appeal by The City of Mew Rochelle from a judgment and order of the Supreme Court in favor of the claimant, entered in the office of the clerk of the county of Westchester on the 'Tth day of July, 1906, upon the decision of the court rendered after a trial at the Westchester Special Term, and also from an order entered in said clerk’s office pn the 18th day of February, 1905.

*William D.*Sawyer, for the appellant.

*William H. Maginnis [John Cummins*with him on the brief], for the respondent.

Miller, J.:

This is an appeal from a judgment appointing commissioners, rendered in a proceeding instituted pursuant'to chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884,* to determine the damages to which the petitioner is entitled by reason of a change in the grade of a street of the appellant made in 1904. The appellant, The City of JSTew Rochelle, was created by chapter 128 of the Laws of 1899, and by that act it was provided that the corporation known as the Village of Mew Rochelle should be dissolved (§ 254 †). The respondent claims the right to maintain against the *834appellant a proceeding authorized by a statute ' applicable only to incorporated villages, because of a grant made by him and. others in 1887 to the village of Rew Rochelle of a strip of land for the street whose grade was changed’ as- aforesaid..- The learned judge at Special--Term* held that the statute in force at the time of said grant, providing a procedure for the appraisement of damages occurring from changes in grade, was a pai-t of the contract between the grantors and the village, and that thereby the grantors acquired a vested easement in -the street to have it. maintained at-the grade first established. Thé learned judge had some doubt ás to thfe pro: cednre, but did not heed such do'ubt for fear of imperiling tlie right. I do not'think the petitioner had a vested right either to damages or to the'procedure prescribed- for the ascertainment thereof. The authorities relied upon to support the decision below are *Muhlker*v. *N.*Y. *& Harlem R. R. Co.*(197 U. S. 544) and *Matter of Torge*v. *Village of Salamanca*(176 N. *Y.*324). But, as I read the. deck, si on in the *Torge*case, it was expressly put upon the ground that chap-. ter 113 of the Laws of 1883, so far as it. related to the change of grade involved in that case, was not repealed by'the Village Law (Laws of 1897, chap. 414, § 159 †): The learned judge who wrote in that case did say: “The right secured to an abutter to compensation for a change in the grade of a street is substantially the grant to him of an easement in the street to have it maintained at its existing grade, and any such easement Created- hy the statute -is in every respect analogous to tho's.e invaded in the elevated railroad cases.”' But his whole discussion preceding-that statement shows that,, had said act of 1883-been repealed absolutely and not in the qualified and limited .manner -pointed- out, the decision Would have been the other way. Certainly the- court did not hold in that case ' that the statute in question was a contract, the obligation of which ; would be impaired by its- repeal. The plenary power .of the Legis-. latu-re over municipal corporations, subject, of Course, to express constitutional limitations, is too well settled to require discussion here. (MacMullen v. *City of Middletown,*187 N. Y. 37.); The court held-in that case that the remedy for the personal injury *835involved was statutory, and it followed that there was no limitation on the. power of the Legislature to deprive the citizen of it. But it is urged that the *Muhlker*case decided that the Court of Appeals could not change or modify a prior decision defining rules of property so as to. affect rights acquired on the faith of the prior decision, and it is argued by analogy that the Legislature, having given a remedy for what was before *darrmum absque*injuria, cannot take it away from one who has made a contract while the statute giving the remedy was in force. The Court of Appeals did not change any rule of property in the *Muhlker Case*(173 N. Y. 549); the rule that abutters have easements in the street of light, air and access was not questioned, but it was held, overruling *Lewis*v. *N. Y. & Harlem R. R. Co.*(162 id. 202) and distinguishing the elevated railroad cases, that, as the viaduct was constructed by legislative command for the purpose of improving the street and not for the benefit of the railroad company, its construction and the operation of trains thereon did not constitute a taking of property but only resulted in consequential damages too remote to be recovered; the Supreme Court of the United States held that the acts complained of did amount to a taking within the meaning of section 1 of the 14th amendment to the Federal Constitution, but that decision did not overrule *Radcliff's Executors*v. *Mayor, etc., of Brooklyn*(4 N. Y. 195).

The case is not changed by the fact that the respondent conveyed the land to the village for a street in 1887. Certainly there was no express contract on the part of the village to pay damages in case the grade of the street established should be changed at any time in the future,.and such a contract cannot be implied from a statute which every one was conclusively presumed to know was subject to repeal at the will of the Legislature. *(Meriwether*v. *Garrett,*102 U. S. 472, 511.) The Legislature has seen fit to dissolve the corporation to which the statute in .question applied' and to create another without giving any remedy against it for damages occurring from changes in. the grades of its streets. The respondent had no vested right to damages before the grade was changed, and when the change occurred it was *damnum, absque injuria.*

The charter.of the city of New Rochelle (§ 254) contained the usual provision preserving contracts, obligations and liabilities, viz.*:*All duties, contracts, obligations and liabilities imposed upon said *836village of Hew Rochelle are hereby transferred to*, vested in and imposed upon the city of Hew Rochelle, * * * and the rights and privileges of all persons.or parties that may have arisen or accrued under, pursuant to, or by reason of any such contracts, obligations or liabilities on the part of said village, shall remain and be the same under this act as they would have béen under the charter of and laws relating to said village,” but. these" provisions cannot aid the respondent for the plain reason that his rights had not *“ arisen*or, *aoeruedP*This .judgment rests upon the .proposition -that the respondent acquired a vested property .right, in the nature of an easement in the street, to have it maintained at the grade first established; but if I am wrong in controverting that proposition, it by no means follows that he had a vested right to have damages resulting from the invasion of -that right ascertained in a particular manner. There is no provision in the.appellant’s charter for any such proceeding as that followed in this, case, and the right to maintain it to appraise damages that had .not accrued when the appellant was created, cannot be spelled out of the clauses quoted, *supra-*, The suggestion of the learned judge below, that the right would be imperiled by denying this particular remedy, tends to support the conclusion that the right itself does not exist. If this judgment can be sustained, it will not be difficult to find very many provisions of village and city charters in full force and vigor, supposed long since to have been repealed,

The judgment should be reversed.

Woodward and Jenks, JJ.,. concurred; Rich, J., voted to affirm upon the opinion of Mr. Justice Burr at Special Term;. Hirsohberg, P. J., not' voting.

Judgment and. order re versed, with costs, and motion denied' without costs.

*

 Also amd. by Laws of 1894, chap. 172.— [Rep.

†

 Amd. by Laws of 1900, chap. 550.-- [Rep.

*

 See Lawton v. City of New Rochelle (51 Misc. Rep. 184).- [Rep

†

 Amd. by Laws of 1901, chap. 68. See, also, Laws of 1897, chap. 414, § 342, subd. 4.--[Rep.