#### Moses McMullen, Respondent, *v.*Village of Marlborough, Appellant.

Third Department,

July 1, 1914

Highways — change of grade of village street — construction of State road—recovery by property owner injured.

Where the construction of a State road through a village at a higher grade necessitates the widening of an intersecting street by the village itself, an adjoining property owner whose access is interfered with cannot recover damages of the village under subdivision 1 of section 159- of the Village Law. This, because there was no change of grade made by the village itself.

*74But such property owner may recover damages of the village under subdivision 2 of the section aforesaid, for it authorizes a recovery for an injury caused by a change of grade not made by the village itself.

It is immaterial that, through inadvertence, the claimant brought his proceeding under subdivision 1 of said section, if the facts set forth show that he is entitled to redress under subdivision 2, if the defendant village has not been misled.

Appeal by the defendant, the Village of Marlborough, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Ulster on the 24th day of November, 1913, affirming the report of a referee and appointing commissioners to determine plaintiff’s damage by reason of the change of grade of Landing street in the village of Marlborough.

*Graham Witschief,*for the appellant.

*Arthur E. Rose,*for the respondent.

Smith, P. J.:

This is a special proceeding brought to charge defendant with the damage suffered by the plaintiff by reason of the change of grade of a street adjoining plaintiff’s property. Main street in the defendant village was denominated by the Legislature as a State highway, and said highway was built by the State in such a way that the grade thereof was mate rially raised. Landing street intersects Main .street running beside plaintiff’s premises, and in order to make proper connection the grade of Landing street was raised between two and three feet adjoining plaintiff’s premises. This was done by the State, and the village had no voice whatever in the matter. After the State had left the work the center of Landing street was about sixteen feet in width, and the sides were somewhat precipitous, so that the village was compelled to broaden the top surface and to fill in the sides of the street, and in so doing built a retaining wall in the street adjoining plaintiff’s property, and filled in between the retaining wall and the center of the highway. This impaired the entrance into and use of the plaintiff’s property, and for the injuries to his property he now seeks redress from the village.

The proceeding is nominally brought under subdivision 1 of *75section 159 of the Village Law. That subdivision gives a right of damages for a change of grade made by the village itself. The broadening of the highway made by the filling in of the sides to make safe the new grade established by the State did not constitute a change of grade within the ordinary understanding of that term, or within any reasonable interpretation thereof. *(Matter of Whitmore*v. *Village of Tarrytown,*137 *N.*Y. 416.) It was only an incident to the change of grade by the State. The proceeding, therefore, cannot be maintained under subdivision 1 of this section. Under subdivision 2 of the section, however, an adjoining owner is given a remedy against the village for an injury caused by a change of grade not made by the village itself. Subdivision 2 was taken from chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884 and chapter 172 of the Laws of 1894. These statutes were considered in *Matter of Torge*v. *Village of Salamanca*(176 N. Y. 324). While the petition purports to be brought under subdivision 1 of section 159, facts are alleged sufficient to authorize a recovery under subdivision 2 of that section, and no reason is apparent why the plaintiff should be denied his remedy because he has mistaken the subdivision of the statute under which his right to redress may exist. If the defendant has been misled by the form of petition, upon showing such facts the court will give adequate relief. Without proof of such facts, however, this court should give such relief to the plaintiff as the facts of the case will warrant, and irrespective of the technical form of the application. The order should, therefore, be affirmed, with costs.

All concurred; Lyon, J., in result.

Order unanimously affirmed, with costs.