64 N.Y. 606 | NY | 1876
The objection interposed by the board of revision and correction of assessment lists, etc., to confirming the award in favor of the relator for damages sustained by a change of grade of One Hundred and Twenty-second street, is based upon the fact that the change was not made in conformity to the act chapter 52 of the Laws of 1852. By that act, a change of the grade of a street could only be made by the common council, and they were required to publish notice of the same in a specified number of newspapers, procure the written consent of owners, etc. Section 3 of said act requires the assessors to assess the damages to the owner of any lots fronting on the street in all cases when the grade of any street or avenue * * * shall be changed in whole or in part. By various acts since, the authority to regulate the grade of streets has been conferred upon the Central park commissioners, to be exercised "in such manner as they may deem the public interests may require." (Chap. 564 of the Laws of 1875; chap. 367 of the Laws of 1866.)
These acts did not require notice or consent, and the park commissioners could exercise the power conferred without the preliminary steps required by the act of 1852. This is conceded, but it is urged that, as these acts did not provide for awarding damages, that the common-law rule damnum absque injuria applies. The act of 1852 is not repealed by these subsequent acts, except by implication, so far as its provisions are inconsistent with them. The provision for assessing damages is general, and is applicable irrespective of the authority which changes the grade, and is as applicable to a *609 change made by the park commissioners as by the common council. The act (chap. 303, Laws of 1859) also confers general authority upon the board of assessors to make estimates and assessments for improvements authorized by law "for which an assessment can be made." An examination of the various statutes shows that the policy of awarding damages to owners of real estate, caused by a change of grade of streets, has been adopted and for many years established by law in the city of New York, and although the statutory provisions respecting public improvements have so complicated the subject as to render it difficult of understanding, it cannot be supposed that there was an intent to allow such damages to owners on one street and withhold them on another; and before such a result is reached, it should be clearly demonstrated that the requirements of law demand it. Not only is this not done, but we think, taking all the acts together, that it is quite manifest that the relator is lawfully entitled to compensation. In People ex rel. Doyle v. Green (3 Hun, 755) it was held that owners were entitled to damages for a change of grade of this very street, and the decision was affirmed by this court. It is now claimed that the decision was made under the erroneous impression that One Hundred and Twenty-second street is within the territory described in chapter 697, Laws of 1867, under which it is claimed the assessment was made. However this may be, we entertain no doubt but the decision was right, and that ample authority existed independent of the act of 1867, and if so, it is decisive in this case.
There is another query worthy of suggestion. If the city authorities actually change the grade of a street without complying with all the requisitions of the statute, can the city set up its own neglect, or that of its officers, as a defence to a claim for damages? When a street is raised ten feet in front of a dwelling, rendering egress and ingress impracticable, and the owner demands reparation, can the city say, true, we have injured your property by raising the grade of the street, and the law allows you compensation, but as our agents neglected *610 some of the preliminary steps, you are not entitled to any redress? It is not needful to pass upon this question. No such neglect appears in this case.
After an examination of the statutes, in this and other cases, relating to public improvements in the city of New York, it seems not inappropriate to suggest that a genuine reform, producing immense benefits, could be effected by a simplification and codification of all the laws on that subject. The interests of the city and of the citizens would be greatly promoted, and their respective rights better protected, and a very large amount of unnecessary and expensive litigation would be prevented.
The order of the General Term must be affirmed.
All concur.
Order affirmed.
