#### The People of the State of New York ex rel. William Waldorf Astor, Relator, *v.*William D. Dickey and Others, Commissioners under Chapter 537 of the Laws of 1893, as Amended by Chapter 567 of the Laws of 1894, Chapter 747 of the Laws of 1905, and Other Acts, and The City of New York, Defendants. The People of the State of New York ex rel. The City of New York, Relator, *v.*William D. Dickey and Others, Commissioners under Chapter 537 of the Laws of 1893, as Amended by Chapter 567 of the Laws of 1894, Chapter 747 of the Laws of 1905, and Other Acts, and William Waldorf Astor, Defendants.

First Department,

July 10, 1913.

Eminent domain — award of grade damage commission — existence of graded street before new grade established — claim — statement of particular street, the grade of which is changed.

An owner of property in the city of New York, in order to be entitled to an award for damages for a change of grade by the grade damage commission created by chapter 537 of the Laws of 1893, must show that there was a graded street in existence immediately before the new grade was established.

Under the provisions of chapter 747 of the Laws of 1905, providing that a claim must briefly describe the property affected, “ and the nature and particulars of the claim for damages,” a claim which does not contain a statement of the particular street, the change of the grade of which is alleged to have resulted in damage, should not be allowed.

Cross oertioraris issued out of the Supreme Court and attested on the 10th day of April, 1913, and the 22d day of *795April, 1913, respectively, directed to William D. Dickey and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of New York all. and singular their proceedings had in respect to a claim of William Waldorf Astor for damages caused by a change of grade.

*Charles I. Nehrbas,*for The City of New York.

*Barclay E. V. McCarty,*for the claimant.

Scott, J.:

Both the city of New York and a property owner and claimant for damages seek by certiorari to review a determination of the change of grade damage commission created by chapter 537 of the Laws of 1893, as amended by several subsequent acts.

The claimant complains that the commissioners erred in refusing to award him damages for the alleged change of grade of River avenue. The city of New York contends that no award whatever should be made to the claimant.

The property affected and as to which damages are claimed is described in the claim filed by the claimant as fronting on the west side of River avenue and extending from East One Hundred and Sixty-fifth to East One Hundred and Sixty-seventh streets. The grading of said streets, which is alleged to constitute a change of grade, was completed and the work accepted by the city of New York upon the following dates respectively: River avenue, August 6,1900; East One Hundred and Sixty-fifth street, November 26, 1904; East One Hundred and Sixty-seventh street, September 23, 1895.

The commissioners refused to award any damages with respect to the grading of River avenue because, as they considered, no adequate proof was made .that the grading constituted a change of grade, and the propriety of their action is called in question by the writ of certiorari sued out by the claimant.

It is manifest that in order to be entitled to an award for damages for a *change of grade*a property owner must show that there was a graded street in existence before the new grade *796was established. , The only evidence which the claimant presented to the commissioners on the subject, so far as concerns Eiver avenue, and, as counsel frankly conceded, the only evidence procurable, was a map or survey on file in the office of the register of the county of Hew York entitled “Survey of Morrisania, Map Ho. 7,” prepared and filed in 1871 by certain commissioners pursuant to chapter 841 of the Laws of 1868. Upon this map Eiver avenue in front of claimant’s property is colored yellow, and there is a legend or statement by the commissioners that the use of that color denotes “old streets, etc., retained and continued.” It is the contention of the claimant that this map is presumptive evidence that there was an existing street at the point indicated at the time of and before February 21, 1871, when the map was filed. (Code Civ. Proc. § 955.) Assuming this contention to be well founded, it proves no more than that there was a Eiver avenue in front .of the premises in question in 1871, whereas, in order to entitle himself to damages, it is necessary for the claimant to show that there was such a street in existence immediately before the new grade was established. This he has failed to do, and as his counsel stated he was unable to do. This concession is very significant in view of the fact that no difficulty was found in proving that One Hundred and Sixty-fifth and One Hundred and Sixty-seventh streets were existent at the time of the establishment of the new grade.

The writ of certiorari sued out by the city of Hew York challenges the jurisdiction of the commissioners to make an award for the change of grade of One Hundred and Sixty-fifth and One Hundred and Sixty-seventh streets. This objection is based upon the form of the claim filed with the comptroller. It is required by the statute (Laws of 1905, chap. 747) that in order to entitle himself to damages for a change of grade a claimant must file a claim briefly describing the property affected “and the nature and particulars of the claim for damages.” To conform to the requirements of the statute a claim must of necessity contain a statement of the particular street the change of the grade of which is alleged to have resulted in damage. In the present case the claim asks damages only for the change of grade of Eiver avenue, and contains no reference *797to any damage resulting from any change of grade of either One Hundred and Sixty-fifth or One Hundred and Sixty-seventh streets. The petition is explicit on this point, stating in the 3d paragraph: “That the name of the particular street or avenue in relation to which it is claimed damages have been suffered by reason of the change of grade is said River Avenue,” and throughout the claim reference is made to “said Street,” by which, as is declared in the 2d paragraph, is meant River avenue. The contention of the city of Hew York that this claim conferred no jurisdiction to award damages for a change of grade of any street other than said River avenue is well founded.

It follows, therefore, that the award of the commissioners in so far as it refuses damages for the alleged change of grade of River avenue must be sustained and the writ of certiorari sued out by the claimant dismissed, with fifty dollars costs and disbursements to the city of Hew York respondent, and that the award of said commissioners in so far as it awards damages for the change of grade of East One Hundred and Sixty-fifth street and. East One Hundred and Sixty-seventh street must be annulled and the writ of certiorari sued out by the city of Hew York sustained, with fifty dollars costs and disbursements to the relator, the city of Hew York, against the claimant.

Ingeaham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

As to the claimant, writ dismissed, with fifty dollars costs and disbursements to the city of Hew York, respondent; as to the relator, the city of Hew York, writ sustained, with fifty dollars costs and disbursements to the relator against the claimant. Order to be settled on notice.