The order should be reversed and an order made directing a rehearing before new commissioners to be appointed by the Special Term. Ho costs to either party in this court. The proceeding was instituted by the property owner claiming damages under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, and chapter 172 of the Laws of 1894. The commissioners allowed both damages to the fee and rental damages. The court at Special Term confirmed as to the fee damages and disaffirmed as to the rental damages. (See Matter of Hoy v. Village of Salamanca, 57 Misc. Rep. 81.) The claimant appeals from the part of the order disaffirming the allowance of rental damages. The village and the railroad appeal from the whole order on the ground that the Special Term had no power to confirm in part and disaffirm in part. It could only confirm or set aside the report in full.
First. As to the allowance of rental damages, the act of 1883 provided in section 1: “ Whenever the grade of any street, highway or bridge in any incorporated village in this State shall be changed or altered so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway so changed or altered, the owner or owners of such building or real estate may apply to the Supreme Court, in the judicial district in which such property is situated, for the appointment of three commissioners to ascertain and determine the amount of damage sustained thereby ; due notice of such application shall be given to the *719person or persons having competent authority to make such change or alteration.”
Section 2 (as amended by chapter 172 of the Laws of 1894) provides : “ All the provisions of the Condemnation Law, relative to the appointment of commissioners, their-powers, duties, fees and expenses, shall be applicable to the appointment of, and the powers, duties, fees and expenses of the commissioners, appointed in pursuance of the provisions hereof,” etc.
As to rental damages, the commissioners found: “ That the said grade of Main street in said village was permanently changed in front of said premises, and that said permanent change of grade in front of said premises is, and has been since September 1, 1901, a continuous trespass upon the easement of access to claimant’s said premises, and solely in consequence of said trespass, and aside from any other causes, the rental or useful value of said premises was depreciated from said date to the date hereof in the sum of $1,225, below what said rental value would have been during said period if there had been no change in the grade of said street in front of said premises, and the rental value of said premises was thereby damaged in the amount aforesaid, and the said sum of $1,225 is hereby awarded to the claimant Augusta Johns, as full compensation for said rental damages.”
The work was commenced September 1,1901, and was completed in about one year. The report was not made until July 19, 1907. This proceeding was begun September 11, 1902, shortly after the completion of the work, but did not culminate in a report by the commissioners as stated above until five years later. We are not interested so much in the question whether the rental damages allowed were excessive as we are in the question of the right to such damages at all.
The ground upon which the commissioners allowed the rental damages, that the change in the grade of the street was a continuing trespass upon the claimant’s easement óf access to her property, was erroneous. There was never any trespass at all The change was made under authority of law. There was not at common law any right in the property owner to recover damages occasioned by such change. (Matter of Torge v. Village of Salamanca, 176 N. Y. 324 ; Smith v. B. & A. R. R. Co., 181 id. 132; Matter of Melen*720backer v. Village of Salamanca, 188 id. 370.) The statute quoted was necessary, and was passed to enable the property owner to recover such damage. There is no controversy here over the allowance of the damage to the property, the fee damage. There might well have been a provision for interest on the award of fee damages from the time of the commencement of the work, but no such provision is contained in the statute, and it is not claimed anything could be allowed for such interest. It seems to me to be equally clear that no provision is contained in the statute for the allowance of loss in the rental value from the time the work is commenced until the report of the commissioners is made. The claimant really contends that such rental damages should be allowed to indemnify her for inability to recover interest, but I think this will,not answer. If the Legislature desired to allow interest, they could have done so. They were under no obligation to provide for the recovery of any damages at all, and the property owner would then have been remediless. They saw fit to allow merely damages to the property, fee damages, without interest of any kind, and I think without rental damages such as are claimed here. The commissioners seemed to realize that something more was necessary than the statutory provision to authorize the allowance of this kind of damages, and, therefore, they conceived the idea of a continuing trespass from the commencement of the work until they made their report, a period of six years, in analogy to the rule in the New York elevated railroad cases. There was a continuing trespass there, but there is none here, as already stated.
It seems to me the true rule applicable to this statute is that laid down in Matter of Squire (125 N. Y. 131), where it was held under a statute containing similar provisions that the damages contemplated are only the permanent injuries to the property from the completed work and its continuance thereafter. The Buffalo street grade crossing cases are not, I think, applicable here. The statutes under which the damages are allowed are not alike, and the proceedings are entirely different. The long delay in the proceeding which was brought by and was under the control of the claimant, was through no fault of the village or the railroad, even if not chargeable to the claimant. The proceeding might very likely have been commenced a year earlier than it was, as soon as the work was com*721menced. I think the Special Term properly held the claimant entitled only to damages to the property known as “ fee damages.”
Second. As to the question raised by the village and the railroad that the Special Term could not confirm the report in part and disaffirm as to the balance, section 3371 of the Code Civil Procedure seems to provide that the report of the commissioners may be confirmed or set aside ; not that it may be modified or changed in any respect. (Manhattan R. Co. v. O’Sullivan, 6 App. Div. 571; affd. on opinion of court below, 150 N. Y. 569; Matter of Central New York Tel. Co., 36 App. Div. 553; Matter of Town of Guilford, 85 id. 207.) The parties do not differ as to this proposition. The claimant contends only that, in case this court holds she was entitled to a confirmation of the entire report by the Special Term, we have the power to reverse the order as made, and ourselves make a new order of confirmation, and this because we can do whatever the Special Term should have done. (Cases last above cited, and Matter of Trustees, etc., 137 N. Y. 95.)
But, inasmuch as we conclude that the commissioners’ report was erroneous, the order should be reversed, and a new order made directing a rehearing before new commissioners to be appointed by the Special Term.
Spring and Robson, JJ., concurred in result in a separate memorandum by Spring, J.; opinion by Kruse, J., for reversing the order of the Special Term and confirming the report of the commissioners; McLennan, P. J., voted for affirmance of the order as made by the Special Term.