in principle is pointed out, and, the appellant having brought the parties into court upon the theory that they had rights in the premises which the city of New York did not own, but which it was desirous of procuring for ferry purposes, we are of the opinion that it is not now in a position to urge a contrary state of facts, even though they rested upon a more tangible basis than we have been able to discover from the consideration of the record now before us.

The order appealed from should be affirmed, with costs.

LACK v. WATTS et al.

(Supreme Court, Appellate Term, First Department. February 14, 1913.) JUDGMENT (§ 163*)-FAILURE TO SERVE WITH PROCESS-MOTION TO VACATEPROCEDURE.

Where defendant seeks to set aside the judgment, alleging that he had never been served with summons in the action or with a copy of the complaint, and the only evidence in contradiction of such affidavit is that of the person claiming to have served the summons, who alleges such service to have been made at a certain time and place, and the affidavit of a third party that at about such time and place he was with the person serving the summons, and he stated that he had some business to transact, the testimony of the witnesses should have been taken in open court where they could have been cross-examined, or the matter should have been sent to a referee to hear and report.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. $ 323; Dec. Dig. § 163.*]

Appeal from City Court of New York, Special Term.

Action by Harry Lack against Stephen K. Watts, impleaded with David M. Ingber and Jacob Verlit, doing business as copartners under the firm name and style of Ingber & Co., and Minnie K. Brown. From an order of the City Court of the city of New York denying his motion for an order vacating and setting aside the service of the summons and complaint and vacating the judgment entered thereon, defendant Stephen K. Watts appeals. Modified and affirmed.

Defendant filed an affidavit denying that the summons and complaint were ever personally served on him. Plaintiff submitted three affidavits, one of which stated, in substance, that he was with affiant, who indorsed an affidavit of service on the summons at a certain date, when such affiant excused himself to transact other business, and that its occurrence was at the time and place stated in the affidavit of the party alleged to have served the summons. An affidavit by the attorney of plaintiff stated no facts, but called the attention of the court to alleged insufficiencies in the affidavit of defendant. The affidavit of the person alleged to have served the summons alleged, in substance, such service on the defendant at a named place at a certain date.

Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.

Kellogg & Rose, of New York City (Asa B. Kellogg, of New York City, of counsel), for appellant.

Mortimer W. Solomon, of New York City (Harry A. Gordon, of New York City, of counsel), for respondent.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

PER CURIAM. Under the peculiar circumstances of this case, we think that the Special Term of the City Court should have taken the testimony of the witnesses under oath in open court when they could have been cross-examined, or should have sent the matter to a referee to hear and determine and report.

The order is therefore modified by directing that the court below take the oral testimony of such witnesses as may be offered by either party or that a reference be ordered, and, as so modified, affirmed without costs of this appeal to either party.

(155 App. Div. 262.)

MCCABE et al. v. CITY OF NEW YORK et al. (Supreme Court, Appellate Division, Second Department. February 7, 1913.) 1. MUNICIPAL CORPORATIONS (§ 278*)-STREETS-GRADE-CHANGE.

If the grade of a street be raised for the benefit of the public, the change does not become illegal merely because railway companies will also reap as great or greater benefit, and for that purpose set in motion the authorities.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 734-738, 744; Dec. Dig. § 278.*]

2. EMINENT DOMAIN (§ 101*)-STREETS-GRADE-CHANGE.

The grade of a street cannot be changed without compensating adJoining owners for injury to their easements, though the public be benefited, unless the change be for a street use.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*]

3. EMINENT DOMAIN (§ 101*) - STREETS-"CHANGE OF GRADE."

A change in a street, whereby a section of the bed is vested in railroad companies for their exclusive use, with a viaduct overhead to accommodate public travel along the street, does not constitute a change of grade for injuries on account of which adjoining owners could not recover; a "change of grade" being usually understood as an elevation or depression of the surface of a street, or a change of the natural contour of its face so as to facilitate travel over it.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 269, 270; Dec. Dig. § 101.*

For other definitions, see Words and Phrases, vol. 2, pp. 1055, 1056.]

Appeal from Special Term, Queens County.

Action by Marie R. McCabe and others against the City of New York and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

Clarence L. Barber, of New York City (Terence Farley, of New York City, on the brief), for appellant City of New York.

A. B. Boardman, of New York City, for appellants Pennsylvania Tunnel & Terminal R. Co. and another.

Stephen O'Brien, of New York City, for respondents.

THOMAS, J. The city acquired Thomson avenue, in Long Island City, and in 1869 established the grade which, in front of plaintiffs' premises abutting thereon, was 9.5 feet above high water mark, but by the changes in question has been raised to an average height of 17.3 feet. Six tracks of the Long Island Railroad Company in a right of way 100 feet wide crossed the avenue, over which many trains passed at grade daily. The Long Island Railroad Company and the Pennsylvania, New York & Long Island Railroad Company (the latter company is succeeded by the Pennsylvania Tunnel & Terminal Railroad Company) applied to the board of estimate and apportionment to change the map or plan of the city by altering, discontinuing, and closing portions of streets and changing the grades of portions of streets, and by laying out portions of new streets in order that the corporation might construct and maintain for the operation of trains terminal facilities. A map or plan accompanying the application shows the yard, the proposed terminal, and the necessary changes in the street, and it was adopted by the board and annexed to and referred to in the contract between the city and the companies, and in the resolutions of the board, and all changes were in accordance with it. The plan, among other things, was to widen the existing right of way front the intersection of Thomson avenue and Purves street for a yard and terminus through a longitudinal distance of two miles. The plan discontinued Thomson avenue as it crossed at grade, and provided for carrying it over the yard by means of a viaduct. The viaduct was in height 32 feet at the northwesterly side of the yard, and, after rising to a maximum height of 46 feet, declined to a grade of 17 feet at Meadow street, the southeasterly terminus of the yard, and finally reached the original grade. But it was the extension toward the northwest that physically affected the plaintiff's property, inasmuch as the approach required an average grade of 17.3 feet. Moreover, a concrete retaining wall was built in front of plaintiffs' property, whereof 13 inches of the foundation occupies plaintiffs' land. The action is to restrain the maintenance and use of the approach to the viaduct in front of the premises and for damages. The judgment is that the plaintiffs are entitled to have removed the wall or embankment, unless the defendants pay them $10,710 for "the damage to plaintiffs' easements of light, air and access and passage to and from said premises over and upon Thomson avenue, and of their property being deprived of light, air, and access on said Thomson avenue," and also the sum of $150 for the trespass upon plaintiff's premises, and taking the same to the extent described. The appeal does not involve the land actually taken. The appellants' contention is that the city of New York, through its authorized instrumentalities and by legal methods, changed the grade of Thomson avenue, and that at common law an abutting owner cannot recover damages therefor, and that the statute (Greater New York Charter [Laws 1901, c. 466] § 951) does not provide for compensation where the land is unimproved, and for this they rely on Sauer v. City of New York, 180 N. Y. 27, 72 Ν. Ε. 579, 70 L. R. A. 717; Matter of Grade Crossing Commissioners, 201 N. Y. 38, 94 Ν. Ε. 188; People ex rel. Flaxman v. Hennessy, 74 Misc. Rep. 167, 134 N. Y. Supp. 145; People ex rel. Hallock v. Hennessy, 205 N. Y. 301, 98 N. E. 516; Matter of Rapid Transit R. R. Commissioners, 197 N. Y. 99, 90 Ν. Ε. 456, 36 L. R. A. (N. S.) 647, 18 Ann. Cas. 366, and other authorities.

The plaintiffs contend and the court found, that the railroad companies for the benefit of their terminal facilities applied for closing Thomson avenue over the width of the proposed terminus, and for carrying the avenue over it by a viaduct, and for elevating the grade accordingly, that by agreement the city permitted the companies at their own expense to erect the viaduct upon their assumption of all liability by reason of the construction and agreement to save the city harmless from liability to property, and that, pursuant to the agreement, the companies did the work, and that the agreement and the acts done under it were "illegal and unauthorized, were and are not for a public use, were and are an additional, unlawful burden imposed on said avenue and foreign and beyond any legitimate or lawful use or purpose for which said avenue was created, and a perversion of the legitimate and public use of said avenue, and plaintiffs' rights thereon, and the same were permitted to be and were done to promote and further the railroad enterprises and to provide terminal railroad facilities for the convenience and benefit of the defendant railroad companies contrary to law," and that it follows that there was an unlawful invasion of plaintiffs' property rights, for which they are entitled to compensation as found. The obvious fact is that the railroad companies desired to enlarge their facilities, and that for such end the city should close portions of streets and sell the same to the companies, and that in instances viaducts should be substituted therefor, usually at the expense of the companies, while the city aided the undertaking by using its power to make the changes in the street. The board of estimate and apportionment in the various proceedings taken declared that the changes were for the public interest, arid in the principal resolution of February 15, 1907, stated that, "deeming it for the public interest to change the map or plan of the city of New York by closing and discontinuing portions of several streets, changing the grades of existing streets and laying out new streets within the limits of and adjacent to the proposed Sunnyside yard and terminal," it does favor the same. The contract between the city and the companies states the reasons for making it. It is first recited:

"Whereas, the Tunnel Company and the Long Island Company, in order to provide a suitable terminus and suitable terminal facilities for the railroad of the Tunnel Company and to facilitate the proper connection of the railroad of the Tunnel Company with the various lines of railroad of the Long Island Company, and thus to provide better facilities for the accommodation of the traveling public and the freight and other traffic on, and the operation of, the said railroads, and to avoid the crossing of certain streets at grade which are now crossed by the railroad of the Long Island Company, desire to construct, maintain, and operate a terminus, terminal facilities (called 'Sunnyside Yard'), and a freightyard in the borough of Queens, within the territory bounded by" streets named and including Thom

son avenue.

It is further premised that the companies have made application to the board of estimate and apportionment to change the map or plan of the city by "changing the grades of portions of streets and avenues

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140 NEW YORK SUPPLEMENT

and by laying out portions of new streets and avenues, all hereinafter specifically described, in order that they may construct, maintain, and operate the said terminus, terminal facilities, and freightyard as hereinbefore set forth, and with such application submitted to the said board a plan showing the proposed terminus, terminal facilities, and freightyards." It is further stated that the board of estimate and apportionment, "believing it in the public interest so to do," has authorized said change; that the companies intend to acquire all lands fronting upon portions of streets and avenues closed, and to apply "to the board of commissioners of the sinking fund to sell and convey to the Tunnel Company or the Long Island Company all the right, title, and interest heretofore acquired by the city to the lands within the lines of the portions of the streets and avenues so to be discontinued and closed." Thereupon, in consideration of the discontinuing and closing by the city through its appropriate departments of portions of many streets as described, including Thomson avenue, lying within the right of way, and the changing of the grade in portions of numerous streets, including Thomson avenue, and the agreement of the city to convey to one of the companies "all the right, title, and interest heretofore acquired by the city in and to the lands within the lines of such portions of such streets and avenues so discontinued and closed on such terms and conditions and for such consideration as in the judgment of the commissioners of the sinking fund shall seem proper," reserving easements for subsurface structures by the city, the companies agree that they or one of them will build at their expense certain viaducts, including the one in question, save in one instance, where they agree to pay one-half the expense of a viaduct and grant the city an easement for the continuance of the same where located, and save in another instance when they will so share the expense if the board should consider another viaduct necessary: And the companies agree to cede or cause to be ceded to the city

"perpetual easement or easements for the rights to continue and maintain the said viaducts or bridges over the following streets or avenues as now laid out or proposed; and will thereby grant to the city a perpetual easement or easements sufficient for the use and control by the city of the said viaducts and bridges for the purpose of police regulation and other control contemplated by the city ordinances for the care of streets or highways, excepting and reserving, however, to the said companies the right to construct and maintain, at its or their own expense, such connections between the said viaducts or bridges, or any of them, and the property of the said companies, as shall not interfere with the use of the said viaducts or bridges for street purposes."

Then are specified several viaducts, and as to the one over Thomson avenue it is said:

"The said viaduct or bridge over the proposed Sunnyside Yard on the line of Thomson avenue, hereinbefore in paragraph 1C, set forth, including the right to the city to increase, at its own expense and without interfering with the operation of the said Sunnyside Yard, the width of said viaduct to be one hundred feet."

The intention of the companies was to enlarge the terminal laterally by acquiring from the city title to the land in the closed streets wherever necessary, and by acquiring the lands abutting there