
    The People ex rel. Rachel Purdy, App’lt, v. Ashbel P. Fitch, as Comptroller of the City of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 29, 1895.)
    
    1. Constitutional law—Local bill.
    Chap. 537 of 1893, which provides for damages to property caused by changes of grade of streets or avenues, made pursuant to chap. 721 of 1887, is not in contravention of the provisions of article 3, section 16 of the Constitution in force at time of its passage, that no local bill shall embrace more than one subject and that shall be expressed in the title.
    2. Municipal corporation—Change op grade—Appointment op commis-
    sioners.
    Where an act, which authorizes the appointment of commissioners for awarding damages for changes of grade of street, is amended by a subsequent act, which merely increased the damages to be allowed, commis- < sioners, duly appointed under the former, need not be re-appointed under the latter act.
    
      3. Mandamus—What considered.
    Objections that the commissioners have included improper items in making their award, cannot be considered upon a proceeding for a mandamus to compel the city comptroller to pay an award made by such commissioners for changes in grade.
    4. Same—Stay.
    A mandamus, issued for such purpose, pending certiorari to review the proceedings of such commissioners, should be stayed until a final determination under the writ.
    Appeal from an order of the general term of the supreme court in the first judicial department, which reversed an order of the special term, granting a peremptory writ of mandamus.
    
    
      Ernest Hall and Ihomas & Bassford, for app’lt: D. J. Dean, for resp’t.
    
      
       Reversing 68 St. Rep. 320.
    
   Haight, J.

On the 14¡th day of November, 1894, the commissioners appointed under chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, made an award to the relator, under and pursuant to the provisions of those acts, for damages sustained by her in consequence of a change of the grade of streets in front of premises owned by her.

The comptroller having refused to pay the award, a peremptory wit of mandamus directing him to pay the same was, on the motion of the relator, issued by the special term. On appeal, however, the general term reversed the order and directed that the motion of the relator be denied.

It is now contended that chapter 537 of the Laws of 1893 is in contravention of article 3, section 16 of the Constitution, then in force, which provides that “ no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” The title of the act is: “ An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of changes of grade of streets or avenues, made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the 23d and 24th wards in the city of New York or otherwise.”

The act in question is, undoubtedly, local, and if it contains more than one subject it is within the condemnation of the Constitution. Its character is remedial and should be liberally construed. People ex rel. Brisbane v. Zoll, 97 N. Y. 203. The whole question necessarily depends upon the meaning that is to be given to the words “ or otherwise." If .they relate to the depression of the railroad tracks authorized by chapter 721 of the Laws of 1887, and the depression of such tracks is the subject expressed in the title under consideration, then there is a reference to something not fully expressed-in the title, and consequently there is a failure to comply with the provision of the Constitution referred to. But such is not our understanding of the language used. Changes of the grades of streets and avenues had been authorized and made in the twenty-third and twenty-fourth wards of the city, tinder the provisions of the Laws of 1887 and other acts, but no provision had been made for compensating the owners of lands abutting upon such streets for the damages they had sustained under any of such acts. It was to afford relief in this regard that the act in question was passed, and the subject expressed is unquestionably the payment of the damages sustained- There is a limitation to the territory to which the act applies to the twenty-third and twenty-fourth wards of the city. It also limits the damages to those sustained by reason of the changes of grades of streets and avenues. It particularly specifies the changes of grades authorized by the law of 1887, but does not limit the awarding of damages to the changes authorized by that act, but includes changes 41 otherwise ” made pursuant to authority. This, it appears to us, is the fair reading and the reasonable interpretation of the language used; and if we are correct in this view, it follows that but one subject is mentioned, and that is expressed in the title.

The general term appears to have reached the conclusion that there was an irregularity in the appointment of the commissioners which affected the award made by them, and the reversal of the order of the special term appears to have been made for this reason. ’ No criticism is made as to the appointment of the commissioners, made pursuant to the act of 1893. After the passage of the amendatory act of 1894, the mayor re-appointed the same commissioners. The amendatory act enumerated a number of other acts, together with that of 1887, under which changes of grades of streets had been and were to be made, all of which were to be considered by the commissioners in estimating the damages that should be awarded to claimants. The appointment of commissioners made in 1893 was made pursuant to chapter 537 of the Laws of that year, and required them to ascertain the damages that had been sustained by reason of the changes of grades of streets, made pursuant to the act of 1887, “ or otherwise 'as provided by said act,” meaning the act of 1893. It will thus be seen that the damages that were to be awarded were not limited to the changes of grades made pursuant to the law of 1887 alone, but they were also authorized to award damages for the changes of grades that had been “ otherwise ” authorized. In re-appointing the commissioners under the amendatory act of 1894, the concluding phrase is omitted. The certificate is as follows : “ City of New York—Office of the Mayor. Know all men by these presents, that, under the provisions of chapter 567 of the Laws of 1894, amending chapter 537 of the Laws of 1893, I do hereby appoint Daniel Lord, James M. Yarnum and Daniel P. Hays, as commissioners, to ascertain and pay the amount of damages to lands and buildings suffered by recent changes of grade of streets and avenues, made pursuant to chapter 721 of the Laws of 1887.” The defect referred to by the general term is in referring to the Laws of 1887 alone, and not including other acts under which changes of the grades of streets had been made. But these acts are enumerated in the act of 1894, and the commissioners by that act were authorized to award the damages by reason of the changes made under the acts so enumerated. They were appointed pursuant to the provisions of the latter act. They qualified under that act, and it appears to us that the certificate is broad enough to empower them to make the awards contemplated by its provisions.

But the re-appointment of the commissioners was unnecessary. Their appointment in 1893 was regular and valid. The certificate of appointment gave them full power to award the damages sustained. "The appointment was made pursuant to the second section of the act. That section was amended by the act of 1894 by the addition of but three words, and those words have reference only to the awarding of damages to be sustained in the future. The provisions authorizing the appointment of commismissioners, their qualifications, etc., remained unchanged. Their duties were enlarged, and this was all that was contemplated.

It is contended that the commissioners have improperly included in their awards items of damage which were unauthorized; that they have included prospective damages under chapter 339 of the Laws of 1892, and that such was unauthorized. But we do not feel called upon to consider these questions upon proceedings for a mandamus. If the commissioners have included improper items, or have adopted a wrong basis in estimating damages, they may be corrected upon review in proceedings for that purpose.

A writ of certiorari was issued to review the proceedings had before the commissioner. The order issuing such writ has been affirmed in this court. The order of the general term should, therefore, be reversed and that of the special term awarding a mandamus affirmed, with costs; but the issuance of the mandamus should be stayed until the final determination of the proceedings under the writ of certiorari.

All concur.

Ordered accordingly.  