153 N.Y.S. 740 | N.Y. App. Div. | 1915
Relator is the owner of a plot o_ land fronting upon Polk avenue in the borough of Queens, upon which in 1907 he erected a building. For many years prior to 1910 Polk avenue had been a public highway operated at the natural level. In 1910 the city of New York regulated and graded the avenue, the grade being lowered two or three feet. The cost of this work was paid out of a special fund, and no assessment, therefore, was levied upon the benefited property. .Consequently the borough president never presented to the board of
The statute relied upon by relator is section 951 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 483 of the Laws of 1912, which reads as follows:
“ § 951. All cases where a change of grade of any street or avenue has been made prior to the taking effect of this act shall, as to the liability to make compensation for damages caused by such change of grade, be governed by the laws in force at the time such change of grade was made. After the taking effect of this act there shall be no liability to abutting owners for originally establishing a grade; nor any liability for changing a grade once established by lawful authority, except where the owner of the abutting property has built upon or otherwise improved the property in conformity with such established grade, and such grade is changed after such buildings or improvements have been made. In such cases damages occasioned by such change of grade to such buildings and improvements shall be ascertained and assessed in connection with and as a part of the expenses of grading or otherwise improving the street or avenue in conformity with the grade as changed. A grade shall be deemed established by lawful authority within the meaning of this section where it was • originally adopted by the action of the public authorities, or where the street or avenue has been used by the public as of right for twenty years, and been improved by the public authority at the expense of the public or of the abutting owners. All laws inconsistent herewith are hereby repealed. In case the grade of any such street shall be changed, and the same shall have been regulated and graded according to the new grade, after the certificate of the cost of such regulating and grading shall have been received by the board of assessors, it shall be
Of course it is literally true that this section provides fox compensation for change of grade “ in connection with and as a pax’t of the expenses of grading or otherwise improving the street or avenue,” and also provides that the loss or damage occasioned by the change of grade shall be estimated “after the certificate of the cost of such regulating and grading shall have been xoceived by the board of assessors,” and that “the amount of the said awards shall be included in the assessment for the regulating and grading * * * as a part of the expense thereof.” In other words, the statute contemplated that the expense of regulating and grading would be met in all cases, as it is and has for many year’s been met in most cases, by an assessment upon the abutting property deemed to be benefited. Hence, where there is no assessment for the cost of the improvement the particular-method of providing for the payment of damages for the change of grade cannot be followed with precision. But that fact does not necessarily deprive the person injured of all relief. The substantial provisions of the statute are that persons damaged by the change of grade shall be compen
Ingraham, P. J., Clarice, Dowling and Hotchkiss, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.