
    The People of the State of New York ex rel. Thomas L. Watt and Curtis B. Pierce, as Executors and Trustees under the Last Will and Testament of Mary G. Pinkney, Deceased, and Others, Relators, v. Antonio Zucca and Others, as and Composing the Board of Assessors of the City of New York, Respondents.
    First Department,
    February 6, 1914.
    Statute of Limitations — construction of bridge in city of Mew York— statute allowing damages to abutting owners — limitations of action as prescribed by Code not applicable — circumstances justifying award.
    A proceeding under section-207 of the Laws of 1890, providing for the construction of a bridge over the Harlem river in the city of Mew York, etc., and authorizing an award of damages to abutting owners, is neither an action nor a special proceeding within the meaning of the Code of - Civil Procedure, and hence the six-year Statute of Limitations prescribed in the Code does not bar an application by landowners to compel an award of damages.
    Where the change of grade caused by the construction of said bridge left the plaintiffs’ property from twenty to twenty-seven feet below grade, and totally destroyed ninety feet of frontage on a road, they are entitled to compensation under the act aforesaid, even though the plaintiffs still havé five feet in width upon said road where the same is useless and valueless for any purpose whatever.
    Certiorari issued out of the Supreme Court and attested on the 31st day of December, 1909, directed to Antonio Zucca and others, composing the board of assessors of the city of New York, 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 relation to relator’s claim for damages.
    
      Abram I. Elkus, for the relators.
    
      Charles J. Nehrbas, for the respondents.
   Dowling, J.:

The relators have obtained this writ of certiorari to review the proceedings of the board of assessors of the city of New York, resulting in the dismissal and disallowance of the relators’ claim for damages presented pursuant to chapter 207 of the Laws of 1890, which provided for the construction of a bridge over the Harlem river, in the city of New York, to replace the then existing Central Avenue or Macomb’s Dam bridge. This act became a law April 29, 1890. Section 3, applicable to the awards for damages caused by change of grade, is as follows: “The expense of constructing the said bridge and approaches thereto with the necessary abutments and arches as aforesaid shall not exceed one million two hundred and fifty thousand dollars, and such further sum for paying awards for damages caused by reason of the change of grade of streets or avenues approaching the same, authorized by this act, as may be awarded by the board of assessors of the said city, whose duty it shall be to estimate the damage which each owner of land fronting on such street or avenue will sustain by reason of such change to such land, or to any improvements thereon, and make a just and equitable award to the amount of such damage to the owner or owners of such lands or tenements fronting on such street or avenue, and opposite thereto and "affected by such change of grade. ”

The exact time when the work upon this bridge was completed does not affirmatively appear, but it was somewhere between the years 1894 and 1897. The first hearing at which the claim of the relators was urged was held by the board on August 25, 1908, and proof was taken of the damage caused to relators by the change of grade caused by the construction of the new bridge and approaches, the witnesses upon that point giving the following valuation of the damages: For the relators: William E. Lowe, $20,310; Jacob D. Butler, $23,130. For the city: Charles A. Berrian, $7,293.

On November 4, 1909, the relators obtained from the Supreme Court a peremptory writ of mandamus directing the board of assessors within twenty days after service of the writ to pass upon the relators’ claim as required by statute and to make a return thereof pursuant to law. Thereafter, on November 23, 1909, the board of assessors, without giving any reason therefor, dismissed and disallowed the relators’ claim. The defendants now seek to sustain this action of the board upon the ground that the claim of the relators is barred by the Statute of Limitations. The city’s contention is that the provisions of subdivision 2 of section 382 of the Code of Civil Procedure applied, providing a limitation of six years within which an action must be brought to recover upon a liability created by statute.

Section 414 of the Code of Civil Procedure provides that the provisions of chapter 4 (within which is embraced the section heretofore quoted) apply to a civil action or special proceeding. The defendants claim that this is a special proceeding within the meaning of the Code. Sections 3333 and 3334 of the Code of Civil Procedure define actions and special proceedings as follows:

“The word ‘action,’ as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.” (§ 3333.)
“Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding.” (§ 3334.)

It seems clear that the actions and special proceedings referred to in the Code do not embrace the relators’ application for relief herein. The test of whether or not an application for relief comes within the definition of the Code must he found in the language of the Code itself, which limits its scope to actions or special proceedings in a court of justice. Thus in McLean v. Jephson (26 Abb. N. C. 40) Ingraham, J., said: “This proceeding, not having been commenced by the service of a summons, is not an action. It is, however, a prosecution in a court of justice by a party against another party for the enforcement of a right and is a special proceeding within section 3334 of the Code above cited.” In People ex rel. Harvey v. Heath (20 How. Pr. 304), where the action _ sought to be reviewed was that of the commissioners of'highways, and it was contended that the proceedings before them constituted a special proceeding, Marvin, J., said: “Again, the proceeding in question was not a special proceeding in the sense used in the Code and statute. The Code professes to be an act ‘ to simplify and abridge the practice, pleadings and proceedings of the courts of this State,’ and the remedies in the courts of justice are divided into, first, actions;* second, special proceedings. The second section gives us the definition of an action, and by the third section ‘ every other remedy is a special proceeding. Eemedies where ? The answer is ‘in courts of justice.’” In Matter of Droege (197 N. Y. 44) Werner, J., said: “Such a proceeding as the one at bar is not ‘ in a court of justice, by a party against another party,’ for it could be carried from beginning to end without the presence of any party save the officer against whom charges are made.”

We think it clear that the determination of the claim of the relators before the board of assessors was not a special proceeding within the meaning of the Code of Civil Procedure, but was a proceeding before an executive board authorized under legislative act and, therefore, not subject to the Code provisions. If the result of this situation of the law is to leave such claims created by statute without a definite period of limitations, that is a matter for legislative action, but which could not be cured by judicial interpretation. Moreover, the existence of such limitation was not urged by the city when the application was made for the writ of peremptory mandamus, nor was the action of the board of assessors based upon that ground.

It is further contended by the defendants that because a portion of Macomb’s Dam road still remains at the original grade, the relators are without relief. In view of the fact that the portion of the road which still remains in front of the relators’ premises is only about five feet in width, and is absolutely useless and valueless for any purpose whatever, this contention does not deserve much consideration. The fact is that the grade- of Macomb’s Dam road adjacent.to the premises in question has been raised so that at the corner of One Hundred and Fifty-fourth street the increased height of the roadway is eighteen feet nine inches, and the property of the relators, which is in the upper half of the block ■ between One Hundred and Fifty-fourth and One Hundred and Fifty-fifth streets, is shut off by a wall forming the northern end of the abutment, sixty-one feet six inches long and twenty-eight feet high. The increase in grade directly in front of the relators’ property amounted to approximately twenty-seven feet, the wall and stairway descending from the abutment now occupying the remainder of the highway, with the exception of the five feet of the original roadway still in front of the relators’ land, which was rendered absolutely useless for any purpose of traffic or transportation. The net result of the changes of grade has been to leave the relators’ land sunken from-twenty to twenty-seven feet below the present grade, with more than ninety feet of the frontage on Macomb’s Dam road totally . destroyed. Under- these conditions it becomes apparent, not only that the relators are entitled to be compensated for the damage done their property by the change of grade, hut as • well that the decision in People ex rel. City of New York v. Sandrock Realty Co. (149 App. Div. 651) has no application whatever to the case at bar. In that case Willis avenue, upon which a bridge had been erected was originally one hundred feet wide. The Sandrock Realty Company owned property with a frontage of fifty feet on Willis avenue as widened. The bridge as finally completed occupied seventy feet of the center of Willis avenue, and to restore the avenue to its original width of one hundred-feet the city took title to a strip thirty-five feet wide on- each side, thus making each side of the bridge approach fifty feet in width, and making the aggregate width of the new avenue on both sides of the bridge structure one hundred feet. The city took the thirty-five-foot strip from the property owners whose land fronted on Willis avenue in condemnation proceedings, and awards were made to the- owners of the land at the time of taking for the land taken. The commissioners made awards to the owners upon the theory that the land was taken to widen Willis avenue, and was not. to be used for the construction of the bridge approach. This court held that as the street in front of the claimant’s premises in that case remained at the old grade, and the damage done it was by the erection of a structure interfering with his easements of light, air and access, for which the Legislature had made no provision, the court could not supply the omission and make any award for damages. Furthermore, the city strenuously urged in that case that inasmuch as a portion of the lands fronting on Willis avenue had been taken in condemnation proceedings, it was the duty of the commissioners of estimate in awarding damages for the portion so taken to include the diminished value of the remainder caused by losing its old frontage and the damage caused to the new frontage by the construction of the bridge. It is thus clear that in the case at bar none of the elements in the Willis avenue case are present. No portion of the relators’ premises was taken in condemnation proceedings by the city, and they have been compensated in no way as yet for the damage done to their property. There has been no substituted highway constructed in front of their premises to replace the destruction of the former roadway by its elevation far above the normal grade. Macomb’s Dam road, as a highway, is abolished so far as the relators’ property is concerned, for the small portion of it which is left in front of their property and adjoining the abutment and stairway is valueless so far as its utility to their property is concerned. They have established damages due to the construction of the approach to the bridge in question, bringing them within the scope of the statute, and the only question for the board of assessors to determine upon the evidence was, what amount the relators should receive for the damages sustained. The writ of certiorari is, therefore, sustained, with costs, the determination of the board of assessors annulled, and the matter remitted to them with instructions to determine the relators’ damages in accordance with the evidence.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Writ sustained, determination annulled, and matter remitted to board of assessors with instructions to determine relators’ damages in accordance with the evidence. Order to be settled on notice. 
      
      -Code Proc. §§ 2, 3; now Code Civ. Proc. §§ 3333, 3334.— [Rep.
     