McCabe v. City of New York

172 A.D. 929, 157 N.Y.S. 1133

Opinion

Finding of fact XXXI reversed as being against the evidence, and in place thereof the following finding, here made, is substituted: That the said notice and advertisement published by the board of estimate and apportionment as aforesaid, constituted a sufficient compliance with the requirements of section 442 of the city charter

* as to such notice, and did, by a reference to the map therein recited, show sufficiently the proposed change of grade of Thomson avenue in front of plaintiffs’ said premises, by the several grade lines in red figures upon said map, in said avenue, coupled with the explanatory notes upon such map. The judgment appealed from is modified by reducing the damages allowed to the sum of $150 allowed for the actual encroachment upon plaintiffs’ premises, and as so modified affirmed, without costs. This determination is made upon the ground that the decision of the Court of Appeals upon the former appeal (213 N. Y. 468) by ne¿essary implication held that, in order that the defendants justify them construction in said avenue, it was not necessary for the defendants to establish that permission or approval of the Board of Railroad Commissioners or of the Public Service Commission of and for the change of grade therein had been obtained; and upon the further ground that the findings, as above modified, and the evidence, establish that the city authorities, namely, the board of estimate and apportionment, in malting such change of grade, in all respects complied with the provisions of the city charter. Carr, Stapleton, Mills and Rich, JJ., concurred; Jenks, P. J., not voting. Order to be settled before Mr. Justice Mills.

See Laws of 1901, chap. 466. § 442, as' amd. by Laws of 1903, chap. 400. Since amd. by Laws of 1913, chap. 329.— [Rep.