That the petitioner is entitled to recover the damages to her premises by reason of the change in the grade of the street which said premises adjoin has been settled by the Court of Appeals in Matter of Torge v. Village of Salamanca (176 N. Y. 324). The controversy here is over the amount of damages. That question is in dispute not only upon the facts, but the rule of law applicable for determining the damages is in dispute as well.
It appears that the work of changing the grade of the street was commenced in 1901, as early as the month of September, and completed a year later. The commissioners determined that the premises in question were depreciated in value $2,100 by the change in the grade of the street. This conclusion seems to have been reached by ascertaining the difference between the value of the lands before and after the change in grade of the street, and is reported by the commissioners as damages to the fee value of the premises. Mo interest was allowed thereon, although the commissioners reported that the grade was changed as early as September 1, 1901. The sum of $1,225 was, however, allowed for loss in the rental value of the premises from the time that the grade was changed until the making of the award on the 19th day of July, 1907.
The Special Term confirmed the award as regards the so-called fee damages, but held that the petitioner and claimant was not entitled to recover the additional sum of $1,225 allowed for loss in rental value, and disallowed the same.
The right of recovery is based upon the provisions contained in chapter 113 of the Laws of 1883. That act provides for compensation in a case like this, whenever the grade of the street is changed *723or altered so as to interfere in any manner with any building or buildings situate thereon or adjacent thereto, or the use thereof, or so as to injure or damage the real property adjoining the highway so changed or altered.
The statute evidently intended to provide for full compensation for the injury or damage done to the property under such circumstances ; and that, in this case, includes not .only damages to the fee, but diminution in the rental value from the time of the permanent change in the grade.
Manifestly, the petitioner would not obtain full compensation if she can recover nothing for the loss in the use and occupation of the property for the time intervening the change in the grade and the making of the award. It may well be that had interest been allowed upon the award for fee damages from the time of changing the grade of the street, that award, together with such interest, would have been adequate compensation, but that was not done.
The case of Matter of Squire (125 N. Y. 131) is relied upon as an authority for excluding the damages arising out of the loss in rental value. In that case it was held that under the provisions of a statute which authorized the commissioners to award damages to the owner of lands contiguous to land taken, which may be affected by the construction and maintenance of the aqueduct and its appurtenances, the owner is not entitled to recover damages for the temporary inconvenience occasioned to adjacent lot owners from the prosecution of the work during the time of construction. That, however, is not this case. Here the rental damages are not for temporary inconvenience, but result from a radical and permanent change in the grade of the street, and, I think, should be allowed. (Village of Port Henry v. Kidder, 39 App. Div. 640; Matter of Grade Crossing Commissioners, 17 id. 54, 62; 154 N. Y. 550; Matter of Grade Crossing Commissioners, 52 App. Div. 27; 165 N. Y. 605.)
This case is like one where a plaintiff in an ordinary condemnation proceeding is permitted to enter into possession of the lands sought to be acquired, after the proceeding is commenced and before it is consummated, as is now provided by the statute. (Code Civ. Proc. §§ 3379, 3380.) In such a case it could not reasonably be claimed, as it seems to me, that an owner should not be compensated *724either for the nse of the property in the meantime or interest on the award from the time it was so taken possession of.
While the award for loss in rental value seems large, I think we cannot say it is so excessive as to warrant setting aside the report of the commissioners upon that ground.
The order, so far as it disallows the damages for depreciation in the rental value and refuses to confirm the report of the commissioners in that regard, should be reversed; the report of the commissioners should be confirmed, and in all other respects the order appealed from should be affirmed, with costs to the petitioner.
Order reversed and report of commissioners vacated and set aside and a rehearing ordered before new commissioners, with costs to abide event.