(dissenting):
In the year 1895 the relator became and ever since has been the owner in fee of certain premises abutting on Washington street in the city of Buffalo, X. Y. From the time the relator became the owner of said premises until about the month of April or May, 1896, the land was practically on a level with Washington street, which street furnished the only means of ingress or egress to the ..premises. In the month of April or May, 1896, under the power conferred by . the Gradé Crossing Act, so called,, and to carry out its purposes, the grade crossing commissioners raised the grade of Washington street in front of the relator’s prémises six feet eleven and fivecigliths inches at the northerly boundary, and about six feet seven and three-eighths inches at the southerly boundary. Thereafter and about the month of May, 1900, the relator appeared before the grade crossing commissioners by her attorney, claiming that her premises had been damaged by reason of the change of the grade ■of Washington street, and recpiested the grade crossing commissioners to apply to the Supreme Court for the appointment of commissioners of appraisal to ascertain the compensation to be paid to her on account of such damage, or that such grade crossing commissioners give her a hearing and permit her to introduce testimony for the purpose of showing that she had suffered damage by the change of the grade of such street. The grade crossing com*610mission.ers, after having personally viewed the premises, determined that no damage had been done thereto, and denied the relator’s application, and refused to hear or take evidence in respect to her claim. '
Thereafter and on the 10th day of September, 1900, the relator procured to be issued an alternative writ of mandamus directed to the grade crossing commissioners, to compel them to-give the relator a hearing, and permit her to introduce the testimony of witnesses to show that her property had been damaged by the change in the grade of Washington street. A return to such writ was filed, the issues raised thereby were tried and a decision duly made. Judgment was entered thereon directing the immediate issue “ of a peremptory writ of mandamus directed to the * * * Grade Crossing Commissioners, requiring them to hear and consider the testimony of such witnesses as the relator should produce before them on the question of damage sustained by the relator by reason of the change of grade of Washington street, and thereupon determine whether such commission shall or shall rot a/pply to the Supreme Court for the appointment of commissioners to assess the alleged damage to the relator.”
From that, judgment, which was duly entered in the office of the clerk of the county of Erie oh the'4th day of March, 1901, an. appeal was taken to the Appellate Division of the Supreme Court, fourth department, where it was in all things affirmed. (63 App. Div. 540; affd., 169 N. Y. 605.)
In accordance with the direction, of said judgment the grade crossing commissioners duly notified’ the relator that they would hear her in respect to her Washington street claim, at their office in. the city of Buffalo on the 11th day of February, 1902, at nine-thirty a. m. of that day. Pursuant' to such notice the relator, by her attorney, appeared and made proof as to the character and situation of the premises, both prior to and after the change of grade in Washington street, and called one witness who testified that in his opinion the property was thereby materially damaged. The commissioners also called one witness, who testified that in his opinion the property of the relator had not been damaged. The commissioners made a personal examination and inspection of the relator’s premises, and after the hearing was closed they held and *611determined that the property owned by the relator was not damaged by the change of the grade of Washington street, or by the carrying out of the plans of the commissioners, and they refused to or at least have not applied to the Supreme Court for the appointment of commissioners of appraisal to assess such alleged damages. Thereafter this writ of certiorari was issued, directing the grade crossing commissioners to make return of all their proceedings in the premises, which they did by filing the petition of the relator, the writ of certiorari issued thereon, all the evidence given and proceedings had upon the hearing before them, and their decision and determination, all of which constitutes the record before us, and upon which we are asked to compel the grade crossing commissioners to make application to the Supreme Court for the appointment of three commissioners to ascertain the compensation to be paid to the relator for the damages she claims to have sustained on account of the change in the grade of Washington street.
It cannot be said that the decision or determination of the grade crossing commissioners is contrary to or against the weight of the evidence; that it was not made in good faith, or that it does not represent their honest judgment.
The brick building on the premises was torn down by the con-' tractors who changed the .grade of the street, but it is stipulated that it “ encroached on Washington street about two (2)- inches at the northerly line, and about two and one-eighth (2J) inches at the southerly line, and that it thereby became necessary to remove that portion of said building which encroached upon said street line, and that thereby, solely on that account, said building was demolished, and not otherwise.” Under that stipulation certainly no damages can be predicated on account of the destruction of the building.
It is further stipulated that the grade of Washington street was raised six feet eleven and five-eighths inches at the northerly boundary of said premises, and six feet seven and three-eighths inches at the southerly boundary. The fact that the grade of the street was so changed, in and of itself, in no manner indicates that the property was thereby injured. On the contrary, such change of grade may have materially enhanced its value. So, again, it appears that the building which was demolished was occupied by a tenant; that he vacated the premises when the work upon the street commenced^ *612and that since that time the premises have heen vacant, but according to the stipulation the building was demolished because it encroached upon the street, and after having been demolished of course it could not he occupied ; so that the fact that the premises were vacant does not necessarily entitle the relator to damages.
Hone of these facts, in and of themselves, necessarily prove or tend to prove that the relator sustained any damage whatevér because of' the change of grade in the street. Whether or not damage was done depends upon all the circumstances and the testimony of the witnesses. One witness called by the relator as an expert testified that in his opinion the change in the grade of the street injured the property. Another expert witness, called by the commissioners, testified that in his opinion no injury was done to it, and, in addition, the commissioners' themselves examined and inspected the premises, and by their decision declared, as did the witness called by them, that in their judgment no damage was done to the relator’s property because of the change in the grade of Washington street. If, therefore, the commissioners were authorized to determine the question we must hold their decision that the premises were not-in jured is final, as it is amply supported by the evidence.
Under section 2140 of the Code of Civil Procedure only the following questions may be determined by the court-upon this hearing: (1) Did't-he grade crossing commissioners have jurisdiction of the subject-matter of the determination under review ? (2) Did they exercise their authority in the mode prescribed by law ? (3) In-making their determination did they violate any rule of law to the prejudice of the relator? (4) Was there any competent proof of all the facts necessary to authorize the making of the determination-?-(5) Was there, upon the evidence, such a preponderance of proof against the existence of any of the material facts that the verdict of a jury affirming the existence thereof would be set aside by the. court as against the weight of the evidence ?
Having concluded, as above indicated, that there was competent-. proof of all the facts necessary to enable the commissioners to determine whether or not the. premises of the relator were injured, and that their determination in that regard was not against the weight of the evidence, it only remains to ascertain whether or not the grade crossing commissioners, under those circumstances, had the *613power, under the Grade Crossing Act, so called, to deny the application of the relator and refuse to apply to the Supreme Court for the appointment of commissioners of appraisal to pass upon the validity and extent of her alleged claim for damages.
Section 12 of the Grade Crossing Act (Laws of 1888, chap. 345, as amd. by Laws of 1890,chap. 255) provides“If the commissioners shall decide that it is necessary for the purpose of carrying out any plan or modification or alteration of a plan adopted by them, * * * that the grade of any street or portion of any street or public ground shall be changed, and that any property may be injured thereby for which the owners or persons interested therein are lawfully entitled to compensation, * * * the commissioners, by their chairman, may apply to a Special Term of the Supreme Court for the appointment of three commissioners to ascertain the compensation therefor to be paid to the owners of or parties interested in the land proposed to be taken, or which may be injured.”
Under the section the commissioners are authorized to decide two questions: First, whether or not it is necessary, for the purpose of carrying out the plan adopted by them, “ that the grade of any street * * * shall be changed % ” Second, whether or not any property may be injured by such change of grade ?
It would seem that the power conferred upon the commissioners to “ decide ” carried with it the duty to investigate, to. examine, to take proof of the facts, to use their judgment and to make the result of such investigation the basis of their decision.
By the judgment in the mandamus case (which was affirmed by this court, 63 App. Div. 540, affirmed Court of Appeals, 169 N. Y. 605) that is precisely what the commissioners were directed to do, and they have in all things, and so far as appears in good faith, obeyed such direction. It could not have been intended by that-judgment to command the commissioners to investigate, “to hear and consider the testimony” of witnesses, and then to decide in a particular way. If the decision in,any event must be favorable to the relator, it would be absurd to require the commissioners to investigate, “to hear and consider.” We think the decision in the mandamus case must be regarded as decisive of the question, and compels an affirmance of the decision of the grade crossing commissioners, it being, as we have seen, amply supported by the *614evidence. This, determination in no manner prevents the relator from recovering the damages sustained by her, if any, because of the change of the grade in Washington street, in an action brought for that purpose. She had such right of action before the passage of the Grade Crossing Act, and it in no manner took from her such right.
In Matter of Grade Crossing Commissioners (6 App. Div. 327) the court said: “ Under the law as it has existed in the city of Buffalo since 1870, at least, they are entitled to compensation when they have suffered damages from a change of grade, and there is nothing in the Grade Crossing Act from which we can infer that it was intended to take away any existing rights; furthermore, after the passage of the Grade Crossing Act, the same provisions as to compensating property owners for damages sustained by change of grade was * placed in the revised charter of Buffalo. (§ 406, chap. 105, Laws of 1891.) So that at the time of these proceedings the statute gave property owners a right to compensation for injury to their property sustained by change of grade.”
In that case it was held that where any portion of the property was taken for the purposes of the grade crossing commissioners, the Value of the part so taken and the damages resulting from such taking must be ascertained in the manner prescribed in the act. It was also held that if the part of the premises not taken was damaged by the change of grade of the street, such damage must also be ascer- ■ tained under the provisions of the act, and in the same proceeding instituted to ascertain the damages sustained by taking a part of the premises; that where the provisions of the act were resorted to for the purpose of obtaining compensation for a portion of the premises taken, all the damages sustained muse be ascertained in that manner • and in one proceeding. In that sense and in no other it was held in that case that the remedy afforded by the Grade Crossing Act was exclusive.
If the'relator’s property was damaged by the change in the grade of Washington street, and she had a cause of action therefoi-j clearly she could not be compelled to have such damages assessed by the grade crossing commissioners, and if the act by its terms conferred such authority it would be violative of section 7, article 1 of the State Constitution which provides that “ when private property shall be *615taken for any public use, the compensation to be made therefor ■* *, * shall be ascertained by a jury or by not less than three commissioners appointed by a court of record,” not by the Legislature Reither could she be compelled to submit to such commissioners for final determination the question whether or not she had sustained damage.. Those questions could only be determined by a jury or by commissioners appointed as provided by the Constitution. But if we assume that the relator’s property has been damaged, and that she is entitled to recover such damages, she cannot complain because of the determination of the commissioners, if made in good faith and upon proper evidence, unless the Grade Crossing Act furnishes the exclusive means of ascertaining and recovering such damages. If it does not, then she may prosecute her claim precisely the same as before the passage of the act. If by the act a new right of action was created in favor of the relator, it was competent for the Legislature to determine by what tribunal it should be adjudicated.
In case the grade of Washington street at the place in question had been changed prior to the passage of the Grade Crossing Act a right of action would have existed therefor in favor of the relator, and it was only competent for the Legislature to provide that it should be adjudicated upon by commissioners appointed.as directed by the Constitution or by a jury. By the act in question it is obligatory upon the grade crossing commissioners, in case they appropriate any part of the premises for the purposes of the act, to apply to the Supreme Court for the appointment of commissioners of appraisal, and the value of the premises taken, the damages to the remainder because of the taking, or caused by any change in the grade of the street, must all' be determined in that proceeding. In such case the act furnishes the exclusive means for the ascertainment and recovery of all damages sustained. If, however, no property is taken, the commissioners, acting in good faith and after hearing and considering all the evidence offered, if sufficient to .justify such conclusion, may determine that premises abutting upon a street of which the grade has been changed have not been damaged, refuse to apply for the appointment of commissioners of appraisal, and leave the party claiming to be damaged by such change of grade to such remedy as existed in his favor prior to the *616passage of the Grade Crossing Act. In that case the remedy afforded by the act is not exclusive. The act does not require the grade crossing commissioners to make application to the Supreme Court for'the appointment of commissioners to ascertain the-damages which it is alleged by some owner may be done to abutting-property, caused by a change in the grade of a street, which application must be based upon- the sworn statement of the commissioners that in their opinion such property may be damaged when in their opinion no damage will result.
In the 'mandamus case (63 App. Div. supra) it was said : “ The intention of the Legislature by the act (Grade Crossing Act) was to-provide the ' exclusive remedy for all damages sustained resulting; from' the acts of the grade crossing commissioners thereunder.”' And Matter of Grade Crossing Commissioners (6 App. Div. supra) is cited as authority for the proposition.
We think the language used must be construed to mean that the remedy provided by the Grade Crossing Act is exclusive-in the', sense in which it was held to be by tire authority cited (6 App.; Div. supra), and not otherwise. At all events, the determination, of that question was not necessary to the decision of the mandamus, case. The only question" there involved was whether or not the grade crossing commissioners should be compelled to hear and consider the. testimony of witnesses on the question of damages sustained by the relator because of the change of the grade of Washington street, and then to determine whether they should or should not apply for the appointment of commissioners. The judgment so directed, to the end that a record of the proceedings before the commissioners should be made, in order that their determination might be reviewed by this court. If this court had been of the opinion that by the provisions of the Grade Crossing Act it was. incumbent upon the commissioners to apply to the Supreme Court, for the appointment of commissioners of appraisal, simply because the grade of Washington street had been changed, and irrespective, of whether damage had resulted or not, this court would not have directed such commissioners to investigate, to hear and determine and to decide whether or not the relator had sustained damages,, as was done by the affirmance of the judgment, but would' have directed them to apply for the appointment of commissioners.
*617Again, in the mandamus case the relator asked, first, that the grade crossing commissioners be compelled to apply to the Supreme Court for the appointment of three commissioners of appraisal; and, second, that they be required to hear and consider the testimony of witnesses upon the question as to whether or not the relator’s property had been damaged because of the change of the grade of Washington street. By the judgment in that case the relief first asked for was denied; the other was granted. The relator did not appeal from such judgment; the commissioners did appeal, and, as Ave have seen, it was in all things affirmed. As above suggested, we think that judgment is decisive of the rights of the parties to this, proceeding when, as we have seen, the decision of the grade crossing commissioners is supported by and is not against the weight of the evidence which they were directed by such judgment to hear and consider, and, in effect, make the basis of their decision.
It follows that judgment should be directed affirming the decision of the grade crossing commissioners, wfith fifty dollars costs and disbursements to be paid by the relator.
Decision of grade crossing commissioners reversed and said commissioners directed to apply to the Special Term for the appointment of commissioners to assess damages, with fifty dollars costs and disbursements to the relator.
Note.— The rest of the cases of this term will he found in the next volume» 75 App. Div.— [Rep.
Sic.