#### The People of the State of New York ex rel. Albert Cladel, Respondent, *v.*Alfred P. W. Seaman and Others, as and Composing the Board of Assessors of the City of New York, Appellants.

First Department,

June 4, 1915.

Municipal corporations — change of street grade, city of Mew York— statute construed — right of property owner to award of damages — failure of city to make assessments.

Although the charter of the city of New York provides that damages to buildings occasioned by the change of street grades shall be ascertained in connection with and as part of the expense of grading the street, and that the loss or damage shall be estimated after the certificate of the cost shall have been received by the board of assessors, and that the amount of the awards to property owners shall be included in the assessment as part of the expense thereof, the statute as a whole intends that the person damaged by such change of grade shall be compensated. This right cannot be denied because the city paid the cost of changing a grade out of a special fund without making an assessment therefor upon the benefited property.

Appeal by the defendants, Alfred P. W. Seaman and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1915, granting relator’s motion for a peremptory writ of mandamus.

*Charles J. Nehrbas,*for the appellants.

*John R. McMullen,*for the respondent.

Scott, J.:

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 *68assessors the certificate of cost necessary to lay the foundation for an assessment. Relator presented to defendants a claim for damages arising from the change of grade. His claim was rejected upon the ground that the board of assessors had no authority to pass upon such a claim except in conjunction with the levying of an assessment for the cost of the improvement, and that because in this case there was no such assessment, there could be no award for the change of grade.

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 *69the duty of the said board to cause to be published in the *‘*City Record ’ and the corporation newspapers, for at least ten days successively, a notice which shall contain a request for all persons claiming to have been injured by the said change of grade to present, in writing, to the secretary of the board of assessors, their claims, specifying a place where and a time when the said board will receive evidence and testimony of the nature and extent of such injury. After hearing and considering the said testimony and evidence the board of assessors shall make such awards for such loss and damage, if any, as it may deem proper. *The amount of the said awards shall he included in the assessment for the regulating and grading of the street in question, as a part of the expense thereof,*and the said award, and the proceedings of the assessors in relation thereto, shall be subject to review by the board of revision of assessments. 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.”

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*70sated, and that the amount of their damage shall he ascertained by the board of assessors. The city cannot, by adopting an unusual method of paying for the improvement, define the original property owner of all redress. A similar question arose in *People ex rel. Myer*v. *Board of Assessors*(53 How. Pr. 280; affd. on opinion below, 64 N. Y. 635) under a very similar statute. (Laws of 1872, chap. 729.) In that case the city resisted the issue of a writ of mandamus upon the same ground that it resists the present application, but the court overruled its contention and issued the writ. Upon the authority of that case the order appealed from was properly made, and it must be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarice, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.