135 N.Y.S. 705 | N.Y. App. Div. | 1912
The relator’s testatrix on May 10, 1889, acquired title to certain real estate in the city of New York designated on the tax maps of the city as “ Block No. 2414, Lots Nos. 1, 3, 4, 5, 6, Y,
8 and 9.” Some time in 1892 she conveyed the title to all of the lots to one Algie by a deed of conveyance which was recorded ■ in the register’s office of the county of New York on October eighteenth of that year. The lots abutted on Morris avenue, the grade of which was physically changed in 1891 and while she held the title.
I am -of the opinion that the comptroller was justified in refusing to make the payment. Chapter 747 of the Laws of 1905 provides, among other things, that “the owner of the property affected, at the date of the enactment of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, shall be entitled to the award of said commissioners, if any such be made.” Thé relator’s testatrix, while the owner of the lots at the time the grade of the avenue was changed, was not the owner on May 9, 1894, and, therefore, by the express language of the statute, she was not entitled to an award for damages. In order to be so entitled she not only had to be the owner at the time the change was made (People ex rel. City of New York v. Stillings, 134 App. Div. 480; affd., 200 N. Y. 525), but also at the time specified in the statute, namely, May 9, 1894.
At common law one was not entitled to damages to property abutting on a street occasioned by its change of grade. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Sauer v. City of New York, 180 id. 27.) The only right to such damages is that given by statute. (Sauer v. City of New York, supra; People ex rel. Central Trust Co. v. Stillings, 136 App. Div. 438; affd., 198 N. Y. 504.) When the Legislature granted, as it did by the act of 1905, the right to damages, it had undoubted power to make such right, and the .remedy to enforce it, dependent upon any condition which it saw fit to ■
The purpose of the act of 1905 is obvious. It was to reheve the owners intended to be benefited by the acts of 1893 and 1894 who had neglected to file claims under those statutes. In order to keep the benefits of the act within the limits contemplated, permission to enforce' claims under the act of 1905 was made to depend upon the ownership of the "land damaged on the date of the enactment of chapter 567 of the Laws of 1894, namely, May 9, 1894. Nor is this view in any way in conflict with People ex rel. City of New York v. Stillings (134 App. Div. 480; affd., 200 N. Y. 525). All that was held in that case was that a person who owned property on May 9, 1894, but not at the time when the grade was physically changed, was not entitled to an award of substantial damages; but it was not decided, nor was any intimation made to such effect, that a person who owned property when it was damaged, but did not own it on May 9, 1894, is entitled to an award.
If the foregoing views be correct, then the change of grade damage commission was without jurisdiction and was not authorized to make the award to the relator, because his testatrix did not own any of the property damaged on May 9, 1894.
In reaching this conclusion I have not taken into consideration the fact that an award for damages was made and paid to one who acquired title to lot “5 ” after the grade was changed..
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.
Ingraham, P. J., Clarke and Scott, JJ., concurred; Dowling, J., dissented
' Order reversed, with ten dollars costs and disbursements, i and motion denied, with fifty dollars costs.