I concur in the views of Judges O'BRIEN and HAIGHT, that the act of the defendant, the Town of Kinderhook, of which the plaintiff complains, was a change of the *Page 145 grade of the highway, and, therefore, under the settled law of this state gave the plaintiff no cause of action. I do not think that the question of the defendant's liability is in any way affected by the fact that the change of grade was the result of proceedings instituted by the railroad company before the railroad commissioners, an application which the town resisted. The legislature could direct the town, even against its will, to change the crossing of the railroad over the highway, and if in effecting such change any property rights were invaded or injured the legislature could require the town to make compensation. Whether, under section 63 of the Railroad Law, an abutter is entitled to compensation for the injuries sustained by a change of grade, as held by Judge HAIGHT, I think it unnecessary to now determine, though it must be conceded that such a construction of the section is in harmony with the present policy of the state, which, through legislation, has provided for indemnity to an abutter for the change made by the voluntary act of municipal authorities.
CULLEN, Ch. J., and WERNER, J., concur in result, in memorandum, with O'BRIEN and HAIGHT, JJ.; GRAY, J., concurs with O'BRIEN, J.; BARTLETT and VANN, JJ., concur with HAIGHT, J.
Judgment affirmed, with costs, and question certified answered in the negative.