
    HENRY KLAUS v. THE MAYOR AND ALDERMEN OF JERSEY CITY.
    Submitted November 11, 1902
    Decided February 24, 1903.
    1. When a city is about to change the grade of a street on which a building- stands, the fact that the owner of the building secures such a modification of the proposed change as will result in less injury to him does not bar his right to damages for the change actually made.
    2. Under the circumstances of this case the relator’s right to relief is not barred by laches.
    
      On application for mandamus.
    
    Before Justices Dixon and Hendrickson.
    Eor the relator, Bedle, Edwards & Lawrence.
    
    For the defendant, John W. Queen.
    
   The opinion of the court was delivered by

Dixon, J.

Under an agreement with the Erie Railroad Company, Jersey City lowered the grade of Grove street, at its intersection with Eleventh street, on the corner of which a building of the relator stood. The work was done in the summer of 1899, and resulted, the relator claims, in damage to his property and the property of adjoining owners. He therefore asks for a mandamus to compel the city authorities to have a proper award made for tlie damages so caused. The city resists the application on the ground that the relator assented to the change, and also has been guilty of laches in pursuing his remedy.

What the relator assented to^ as shown by the evidence, was a modification of the proposed change, which he thought would result in less damage to his property; but it does not appear that he assented to forego his right to compensation for whatever damage the modified change would cause.

On the question of laches, the case shows that on June 6th, 1899, the board of street and water commissioners referred the matter to the commissioners of assessments to ascertain the damages and benefits resulting from'the change of grade, and that the present proceeding was instituted in May, 1902.

Evidently, during a part of the interval, the relator was justified in expecting that the commissioners of assessments would proceed to' perform the duty thus devolved upon them, and it does not appear that during the residue of the interval, or indeed at any time, anything occurred which would change the situation to the detriment either of the city or of property owners. Under these circumstances we think the delay should not bar relief.

These objections being put aside, the case is governed by Clark v. City of Elizabeth, 32 Vroom 565, and a peremptory mandamus should be issued.  