201 A.D. 787 | N.Y. App. Div. | 1922
The petitioner is the owner of premises at the northeasterly corner of Park avenue and Fortieth street, having a frontage on Park avenue of ninety-eight feet nine inches, and on Fortieth street of one hundred and fifty-one feet. In or about the year 1853 Park avenue was opened, and it has been improved and used as a public street with a paved carriageway, curbing and sidewalks. On the 2d of April, 1912, the mayor approved a resolution adopted by the board of estimate and apportionment changing the grade of the middle of the street as it then existed, with a view to providing a carriageway passing over Forty-first and Forty-second streets, and connecting, around the Grand Central Station, with Park avenue to the north; but there was no physical change made in the grade of the street to carry that contemplated improvement into effect until after the grade was again changed by a resolution adopted by the board of estimate and apportionment and approved by the mayor on the 21st of June, 1918. After the adoption of the change of grade in 1912 and on the sixteenth of July that year, the relator filed plans for the erection of a new sixteen-story building on its said premises. The plans were approved and it proceeded with the erection of the building, which was completed on the 6th of January, 1914. The change of the legal grade in 1912 did not affect the grade of the sidewalks or of the curbs or of the carriageway at the sides of the street, and contemplated only the erection of a viaduct forty-two feet in width, leaving twenty-seven feet of carriageway on either side. If the construction of the viaduct had been commenced or even completed prior to the filing of the plans for the erection of the building, it does not appear that the relator’s plans for the erection of its building would have been required to be or would have been any different from those pur
This section was amended by chapter 483 of the Laws of 1912, after the adoption of the resolution changing the grade in 1912 and before the relator erected the building, by merely omitting from the second sentence thereof the words “ subsequently to such establishment of grade,” and by adding at the end of the section the following words: “ This section shall be applicable to any and all claims for damages for change of grade now pending before the board of assessors of the city of New York, and not heretofore confirmed.” Manifestly that amendment did not affect the claim of the relator, and, therefore, it is unnecessary to consider the object or effect thereof. By chapter 537 of the Laws of 1915 the section was amended by eliminating the provisions with respect to what should constitute the establishment of the grade. The phraseology of the provision conferring the right to damages was also changed by that amendment and by chapter 516 of the Laws of 1916 and by chapter 619 of the Laws of 1918, prior to the adoption of the change of grade in 1918 and to the construction of the viaduct pursuant thereto. The provisions of the section as amended in 1918, upon which the relator relies, are quoted in the petition to the court herein, as follows: “An abutting owner who has built upon or otherwise improved his property in conformity with the grade of any street or avenue established by lawful authority, and such grade is changed after such buildings or improvement have been erected, and the lessee thereof, shall be entitled to damages for such change of grade. * * * Except as herein provided, there shall be no liability for originally establishing a grade or for changing an established grade. Damages to such buildings and improvements shall be ascertained and assessed by the board of assessors in the manner hereinafter provided. * * * When any street shall have been regulated and graded, it shall be the duty of the board of assessors,
The learned counsel for the appellants contends that the claim of the relator does not come within the statute, and that, therefore, it was properly disallowed by the assessors. In condemnation proceedings for the purpose of acquiring lands for opening streets, in accordance with maps previously filed, pursuant to law, it has been held that section 980 of the charter, as amended by chapter 394 of the Laws of 1909,
The learned counsel for the relator argues generally that the present statute, with the provisions relating to what constitutes the establishment of a grade eliminated, requires a different construction, and that the decisions to which reference has been made are no longer controlling. With those provisions omitted, there still remain the provisions of section 442 of the charter (as amd. by Laws of 1903, chap. 409; Laws of 1913, chap. 329, and Laws of 1917, chap. 632) authorizing the establishment and change of grades, and of section 441 prescribing what length of user shall constitute the establishment of a grade without formal action. While section 951 contained a specific definition as to what constituted the establishment of a grade, those provisions were deemed exclusive, and it was held that section 441 was inapplicable. (People ex rel. Flaxman v. Hennessy, supra.) The relator also relies, in this connection, on the decisions holding that the damages do not accrue until the actual physical change of grade (People ex rel. Bennett v. Dickey, supra), but I think those authorities are not controlling on the point now under consideration, which is, not when damages allowed by statute accrue, but whether the right to any damages has been conferred by the Legislature.
I am also of opinion that there is another ground, not argued, but upon which it might well be argued that the relator is not entitled to damages. It is to be borne in mind that this statute does not give damages to abutting owners for a mere change of grade by which the surface of the street is taken below or above the surface of their premises. If the relator’s premises had not been built upon, it is quite clear that it would have no standing to claim damages. The purpose of the statute, therefore, was to provide for awarding damages sustained by an abutting owner in consequence of a change in the grade of the street after he has improved his property, relying upon the legally established grade at the time of making the improvements; and on that theory, the relator, I think, sustained no damages in any event, for, as already observed, the change of grade in the middle of the street in no manner affected the grade, with respect to which the premises could be economically and advantageously improved. In other words, it is quite evident that the relator’s damages would be the same whether or not it had erected the building, and the Legislature has not provided for the allowance of such damages. Since, however, this point has not been argued, and the evidence with respect
The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Since amd. by Laws of 1920, chap. 786.— [Rep.
Repealed by Laws of 1915, chap. 606, §§ 1, 3. See Greater New York Charter, §§ 1001, 1010, as added bv Laws of 1915, chap. 606.— [Rep.