Smith v. Boston & Albany Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The Town of Kinderhook, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 4th day of March, 1904, upon the decision of the court rendered after a trial at the Columbia Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint.
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Appeal by the defendant, The Town of Kinderhook, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 4th day of March, 1904, upon the decision of the court rendered after a trial at the Columbia Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint. The action is brought to recover damages to the plaintiff’s property by reason of the changing of the grade of a highway for the purpose of making an underpass under the Boston and Albany railroad. Plaintiff’s property…
1Opinion of the Court
Smith, J.:
The complaint has been held good as against the defendant town, not by reason of any liability imposed by the statute, but solely because of the order of the Board of Bailroad Commissioners made under section 62 of the Bailroad Act, in which order it was provided that the defendant town should pay plaintiff for his damage resulting from the change of grade. Such is the ground of liability as stated in the opinion of the learned trial judge. We are at a loss to understand, however, without either common-law or statute liability to pay for the injury which plaintiff has suffered, how…
2Cases cited2 opinions
- Radcliff's Executors v. . Mayor, C. of BrooklynNew York Court of Appeals · 1850
- Matter of Torge v. . Vil. of SalamancaNew York Court of Appeals · 1903
3Cited by3 opinions
- Sardo v. HerlihyNew York Supreme Court · 1932
- Town of Amherst v. County of ErieNew York Supreme Court · 1932
- In re BaynesAppellate Division of the Supreme Court of the State of New York · 1910