Smith v. Village of White Plains

22 N.Y.S. 450, 67 Hun 81, 74 N.Y. Sup. Ct. 81, 51 N.Y. St. Rep. 625

Opinion

PRATT, J.

The appellant’s contention is based upon the idea that an abutting owner has a vested interest, in the grade of a street as established, and that a change of grade is a taking of private property. We .believe this to be an error. The right of an abutting owner to recover damages for a change of grade in a street depends upon statute, and in many, and perhaps most, cities of the state, does not exist. The legislature had the power to repeal the law of 1888, in whole or in part. We do not see that a landowner in White Plains has any more right to complain that he has lost the benefit of the act of 1883 than a landowner in Brooklyn has that he has never been allowed such relief. The remedy provided for the White Plains landowner may be imperfect, but for similar injuries property holders in other localities have no remedy whatever. Dismissing the petition on the grounds set forth was in effect sustaining a demurrer. We think there was a trial of the legal question. Order affirmed, with costs. All concur.