This case was submitted in connection with that of Triest v.City of New York (193 N.Y. 525), in which we have written an opinion reaching the conclusion that the judgment in that case should be reversed, but in this case the findings are very different. The plaintiff's premises were located on Catlin avenue, which was found not only to be a public street and highway, but that there had been a grade established by user, and that the plaintiff had constructed three buildings abutting upon the avenue, conforming to such *Page 537 grade before the change of grade of 1897 was made. It appears that in that year a change of grade was authorized and the contract let for the making of the same before the Greater New York charter went into effect. We are, therefore, of the opinion that, in that case, the rights of the parties are to be determined by the County and Village Law in force, and not by section 951 of the Greater New York charter; for, under the provisions of that act, "all cases where a change of grade of any street or avenue has been made prior to the taking effect of this act, shall, as to the liability to make compensation for damages caused by such change of grade, be governed by the laws in force at the time such change of grade was made." That being the case, the further provision of section 951 to the effect that "a grade shall be deemed established by lawful authority within the meaning of this section where it was originally adopted by the action of the public authorities, or where a street or avenue has been used by the public as of right for twenty years and been improved by the public authority at the expense of the public or of the abutting owners," has no application. Under the laws then in force the plaintiff had the right to have his damages ascertained and determined, but he was deprived thereof by reason of the failure of the authorities to give the notice required by the statute. It consequently follows that, in this case, the judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, VANN, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment affirmed.