
    ROSWELL D. HATCH, Plaintiff and Respondent, v. JOHN J. BOWES, impleaded with J. NELSON TAPPAN, Chamberlain of the City of New York, and THE MAYOR, ALDERMEN AND COMMONALTY of the City of New York, Defendants and Appellants.
    
      Decided February 4, 1878.
    Hew Yobk City.
    1. GRADES OF STREETS, CHANGING OE.
    1. Award for damages under chapter 52 of the Laws of 1852, made to a certain named person by the board of assessors, and deposited by the comptroller with the city chamberlain. *
    
      (a) CLAIMANT, in opposition to the person named in the assessment list as entitled thereto, bbmedy of.
    1. An action against the party named in the assessment list for the recovery of a sum equal to the amount so deposited.†
    
      (a) The statute makes such deposit equal to a payment to the person named in the assessment list, for the purposes of a suit to be brought thereon.
    2. This right to bring action, enures to whom. To every person seeking to enforce a claim to the award, no matter whether his alleged rights accrued before or after the making of the award, by operation of law or the act of the parties.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ*.
    * The questions as to what remedy a claimant would have in case the comptroller refused to pay either to the chamberlain, or to the party named in the assessment list, and the party named refused or neglected to sue, or in case the party named was insolvent and the comptroller announced his intention to pay to him, or in case the claimant notified the comptroller not to pay, but he, nevertheless, did pay, were not involved in the decision of the demurrer.
    † Of course, the right of recovery would depend on the claimant’s establishing his right to the award. '
    
    
      Action to recover §1,560, being the amount of an award made to defendant Bowes, by reason of damage done by the change of grade of Manhattan street.
    The defendant, Bowes, demurred to the amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action against him.
    The demurrer was overruled with leave to answer, and from the order entered thereon the defendant appealed.
    
      Thomas Wins or, attorney, and of counsel, for appellant, urged :
    —I. The only claim of Hatch is, that at the time when the work was actually commenced in changing the grade and regulating Manhattan street, he was then owner, and the award should have been made to him instead of Bowes, the present -owner.
    This means that the action of the board of assessors in allowing, and the board of revision in confirming, an award to Bowes, was erroneous, and so far void as that it may be assailed collaterally in an action against the city directly for the money, as though the award had been made to him ; and this without any proceeding, by mandamus or otherwise, against either board, to review, correct or change the award. The action of the boards of assessors and revision was judicial (Barhyte v. Shepherd, 35 N. Y. 238, 252-4). It can only be reviewed or corrected by mandamus, certiorari, &c., and the error, if there was any, "does not lay the foundation for an action at law to redress the alleged injury ” (Swift v. City of Poughkeepsie, 37 N. Y. 511; Barhyte v. Shepherd, 35 Id. 255; Heywood v. City of Buffalo, 14 Id. 539). There is no award to Hatch, nor to unknown owners, and this action, as a proceeding to change the award from Bowes to him, cannot be maintained.
    II. This court has decided, both at special and general term, in this controversy, that the provision of the act of 1852, conferring special jurisdiction on this court in these proceedings, is unconstitutional and void. There are no remedies left, therefore, except that given by the statute itself. No action can be maintained under the statute excepting assumpsit, as for “ money had and received ” in behalf of the party who has the legal title (Laws of 1852, ch. 52, § 4). The plaintiff Hatch has no legal title, and therefore has no standing in court. The statute does not admit the inquiry whether an award has been erroneously made, but only whether it has been erroneously paid. This contemplates only claims for the award by persons in a representative capacity as heir, next of kin, assignee, judgment creditor, &c., of the party to whom the award is made. The words in the proviso, “their title to receive such award disputed,” mean nothing different from this, namely, not to whom should this award have been made, but as it stands, to whom is it payable % Besides, doubtless, the whole proviso falls under the constitutional objection, its plan and scheme being broken.
    III. No action can be maintained under this statute excepting against the party who has the money. It is not alleged that the defendant Bowes has ever received the money awarded to him. On the contrary, the complaint avers that it is held by the other defendants (Laws of 1852, ch. 52, § 4).
    IV. The change of the grade of a street does not take private property for a public use, and there is no constitutional requirement that comjpensation shall be given (Const. art. 1, § 7). This award was therefore a pure gratuity given by the act in question ex gratia for the exercise by the State of its right of eminent domain. The case falls within the principle that every owner of property holds it subject to the paramount authority of the sovereign power to make public improvements, notwithstanding incidental damage may-result to individuals (Brick Church v. The Mayor, 5 Cowen, 538; Stuyvesant v. The Mayor, 7 Id. 588; Coates v. The Mayor, 7 Id. 585). At common law, therefore, the injury claimed would be damnum absque injuria (People ex rel. Doyle v. Green, 3 Hun, 759). The award is analogous to a bounty or pension granted by the government. The statute alone which gives the gratuity gives also the remedy. No action can be brought, and no action can be sustained against Bowes until he receives the money.
    
      James A. Deering, attorney, and of counsel, for respondent, urged.
    —I. The plaintiff is entitled to sue. The mere mention of J. J. Bowes in the assessment list is not conclusive, as by section 4 provision is made for cases where the title of the party named in the assessment list is disputed. The counsel for Bowes based his argument at special term in support of his demurrer on the point that no equitable relief could be had in this matter, but that an action on assumpsit is the only remedy provided by Laws of 1852, section 4, statute 52. In this he is mistaken, as two distinct provisions are made by said section. First. That in case of non-payment of award by the mayor, &c., it shall be lawful for the persons entitled to the same to sue for and recover the amount (Fisher v. Mayor, 57 N. Y. 344). Second. That when such award is paid to the wrong person, it shall be lawful for the person to whom the award should have been paid to sue the person wrongfully receiving the award, as for so much money had and received. This action is brought under the first provision, which is general in terms, and Bowes is made a party defendant as claiming an interest adverse to the plaintiff under section 447, code of civil procedure.
   By the Court.—Freedman, J.

—The question presented by the present appeal is one of pleading, and for the purpose of determining it the allegations of the complaint demurred to must be assumed to be true. No facts outside of it can be considered. The said complaint contains no allegation that the plaintiff ever conveyed the premises described therein to the defendant Bowes, or that the latter has, or ever had, any title to or interest in the same. It avers the making and confirmation, pursuant to the statutes in such case made and provided, of the award of $1,560, for the damage and injury done to the premises by the change of the established grade of the street, and the regulation thereof in accordance thereto, and then proceeds as follows :

Third. That at the time of the actual change of grade of said street, and of the aforesaid regulation, this plaintiff, and one Daniel Green, were the owners of said premises, and the persons injured by said change of grade and regulation as aforesaid, and entitled to whatever award or damages made or to be estimated therefor.

Fourth. That on January 34, 1877, the said Daniel Green assigned to said plaintiff all his estate and interest in the sum awarded, as aforesaid, for said damages sustained, as aforesaid.

“Fifth. That the said board of assessors allowed, and the said board of revision confirmed, the said damages to one John J. Bowes, who is made a party defendant hereto, and who claims the same, but that the said allowance was made without notice to, or the knowledge or consent of, this plaintiff, and without any examination as to the right to said award as' between this plaintiff and the said Bowes, and that the said Bowes has no right, title or interest in, or to, the said award, or any part thereof.”

These allegations sufficiently show plaintiff’s right, and sufficiently deny defendant’s claim to the award as made.

The question then arises whether plaintiff has pursued the proper remedy to enforce his right. •

At common law, a town or city is not liable for damages resulting to an abutting owner from a mere change in the grade or surface of the public highway, if the change does not extend beyond the limits of the highway. The loss which he suffers from such a change is damnum absque injuria.

By chapter 52 of Laws of 1852, however, compensation is directed to be made in certain cases. The statute prescribes the mode in which the loss or damage shall be ascertained and the award made and paid. It also makes provision for cases of conflicting claims to the same award, and for claims by persons under disabilities, and by unknown owners whose names could not be ascertained by the assessors, but is to a great extent silent as to the manner in which conflicting claims are to be determined.

The plaintiff heretofore applied on petition that the comptroller be directed to pay to the chamberlain the said award of $1,560 to await the determination of the rights of the petitioner, and that the court take proof and determine the title of the petitioner and other claimants to the award; and it was held, both at special and general term, that no jurisdiction had been conferred to determine the matter in any such summary manner. At the same time it was intimated that the remedy was by action.

The plaintiff thereupon brought this action, in which he asks judgment against the mayor, aldermen and commonalty of the city of Hew York for the sum of $1,560; that the chamberlain be directed to pay over to the plaintiff a certain part of the said award which has already been paid over to him by the comptroller; and that J. J. Bowes be adjudged to have no interest or title in and to the said award.

The defendant, Bowes, being the only defendant, who interposed a demurrer, it is only necessary to ascertain whether the action as brought is well brought against him.

The complaint contains no allegation of insolvency on the part of Bowes, nor does it contain any other allegation calling for the interposition of the equitable powers of the court, and consequently it must be treated as resting upon the statute exclusively. This renders it necessary that we should re-examine the intimation thrown out by the court on the former occasion, and determine in what cases and to what extent the statute gives a right of action.

Under the statute the awards, if any be made, are to be made by the assessors to the owners of the lands or tenements fronting on the street and opposite thereto (§ 3).

Within four months after the ratification of the assessment, the corporation of the city of New York is directed to pay to the respective parties entitled thereunto the amount of such awards in their favor respectively ; and in case of neglect or default to pay the same, after demand made therefor, the persons entitled to the same may sue for and recover the amount (§ 4).

The words “respective parties entitled thereunto” and “persons entitled to the same,” as thus used, evidently refer to the owners named in the assessment list in whose favor the awards were made by the assessors, and no others, and this is the interpretation to be given to the statute. All others are left to pursue, in the first instance, whatever remedy may be appropriate to effect a revision and correction of the assessment, and in case of non-success or failure to take the necessary steps, they have, except in the few instances to be hereafter stated, no direct right of action.

The statute next provides, that in case an award shall be paid to any person or persons not entitled thereto, the person to whom the same ought to have been paid, may sue for and recover the same with lawful interest and costs of suit as so much money had and received to his use. The right of action hereby conferred arises after payment, and-is enforceable only against the person or persons to whom payment was made. The question as to what persons are included in the words “the person to whom the same ought to have been paid,” I shall discuss hereafter.

The plaintiff not having been enumerated in the assessment list as the person entitled to receive the award, and the award, as made, not having been paid over to Bowes to whom it was made, the action set forth in the complaint cannot be maintained under the provisions of the statute so far considered.

The statute, however, finally provides as follows :

' “Provided, that when the name or names of the owner or owners, party or parties are not set forth in the report of the assessors, or where the said owners, parties or persons respectively, being named therein, shall be insane, a married woman under the age of twenty-one years, or absent from the city, or after diligent search cannot be found, or their title to receive such awards disputed, it shall be lawful for the said mayor, aldermen and commonalty to pay the sum or sums mentioned in said report, or that would be coming to such owners, parties and persons respectively, to the chamberlain of the city of New York, to be secured, disposed of and improved as the superior court shall direct, and such payment shall be as valid and effectual in all respects as if made to the said owners, parties, and persons respectively themselves, according to their just rights, if they had been known and had been present, of full age, single woman and of sound mind.”

This proviso again shows that it was the intention of the legislature to shield the corporation against actions at law instituted by persons other than those named in the assessment list. .The statute first authorizes all so enumerated to maintain actions directly against the corporation, in case of its neglect or refusal to pay; to such as are not thus enumerated, it gives a remedy against thos'e to whom payment may have been made ; and finally, the proviso makes a deposit with the «chamberlain equal to a payment, for the purposes of a ¡.suit to be brought thereon. But no jurisdiction is conferred to compel a deposit.

The complaint alleges that a small portion of the .-sum of $1,560 was on or about January 19, 1877, paid ¡by the comptroller to the chamberlain, who now holds :the same, and hence, to the extent of that deposit, the «complaint states a sufficient cause of action against ¡Bowes, provided the plaintiffs were authorized to sue, If payment had actually been made to Bowes. The reason for which the deposit was made, is immaterial. It may well be that the comptroller set off an assessment levied upon the premises in question for benefit against the sum of $1,560 awarded for damage, and that the amount deposited represents the" difference only. Whatever the fact may be, it is sufficient that ■there is in the hands of the chamberlain a sum of money representing a portion of the award.

The only remaining question, therefore, is whether the statute would authorize plaintiff to sue Bowes as for money had and received to plaintiff’s use, if payment had been made to Bowes.

It has already been shown that so far as the statute gives the right to sue the corporation, the right is confined to the persons who had amounts awarded to them in the assessment list. But the remedy by action against such as received the award without being entitled thereto, is, as regards those authorized to sue in such case, not restricted to any particular class. As to the parties empowered to bring such a suit there are no words of limitation. On the other hand, the proviso expressly provides that, as against certain parties-named, a deposit with the chamberlain shall be just as effectual as if payment had been made in some other lawful manner. Upon the whole statute, therefore, I am of the opinion that the words ‘ person or persons to whom the same [viz., the award] ought to have been paid,” are comprehensive enough to include every person seeking to enforce a claim to the award as made, no matter whether his alleged right accrued before or after the making of the award, by operation of law or the act of parties, and that every such person may maintain an action against the party to whom the-award was paid, or for whose account a deposit was made.

For the reasons stated, the facts set forth in the-complaint are sufficient to authorize a recovery against-the defendant Bowes to the extent of the amount in the hands of the chamberlain, and consequently the demurrer was properly overruled.

The order appealed from should be affirmed with costs, and.with leave to defendant to answer on payment of costs.

Curtis, Ch. J., and Sedgwick, J., concurred.  