
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Trinity Avenue (Although Not yet Named by Proper Authority) from Westchester Avenue to East One Hundred and Sixty-sixth Street, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road in the Twenty-third Ward of the City of New York. The City of New York, and Others, Appellants; Lebanon Hospital Association and Others, Respondents.
    
      Change of grade of a street in New York city—measure of damage to a building on an abutting lot—effect of the street haring been dedicated for street purposes — damages where the land is burdened with easements of passage granted to individuals.
    
    "Where the lowering of the grade of a street in the city of New York, for a dis-. tance of from seventeen to twenty feet below the natural surface thereof, oper- • ates to deprive buildings located on land adjoining the street of access to and , from the street, and will necessitate the lowering of such buildings or the adoption of some other means of access to and from the street, the measure of damages recoverable by the owner of the buildings, under section 978 of the Consolidation Act and section 980 of the Greater New York charter, is the difference between the value of the buildings as they were before they were deprived of access to and from the street and their value thereafter.
    The fact that an owner of land dedicates a portion thereof to the public for "street purposes and subsequently conveys the land abutting upon the street to a third party, will not prevent such latter grantee from claiming compensation for injury done to buildings located upon the lands granted, in consequence, of the . subsequent grading of the street.
    An owner of land, which is burdened with easements of passage granted to private individuals and not to the public, is entitled to substantial damages when the land is taken for a public street.
    Van Brunt, P. J., dissented.
    Reargument of an appeal by The City of New York 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 13.th day of June, 1901, confirming the report of commissioners of estimate and assessment appointed in the above-entitled matter. ■ •
    
      John P. Dunn, for the appellant, The City of New York.
    
      Ernest Hall, for the respondent. Lebanon Hospital Association and others.
   Patterson, J.:

This is an appeal from an order made at the Special Term confirming the report ©f commissioners- appointed in a proceeding instistituted by the city of N¿w York to acquire lands, tenements and hereditaments required for the purpose of opening Trinity avenue from Westchester- avenue to East One Hundred and Sixty-sixth street in the twenty-third ward of the city of New York. - -

Written objections were presented 'to the report of the commissioners by the city of New York and by other parties. In addition to those objections, the commissioners received evidence and heard counsel upon" others not "included among those stated in writing, and all the objections seem to have been considered by the learned justice at Special Term on the motion to confirm the report of the commissioners.

In proceedings of this character it; has been the uniform practice of the courts to consider only such objections -as were properly and distinctly formulated. Section 984 of the Consolidation Act (under which act. this proceeding was begun) > which is substantially the same as section 981 of the Greater New York charter, provides that all persons interested in such proceedings or in any of the lands affected thereby, having objections thereto, shall file the same in writing with said commissioners within twenty days after the first publication of the specified notice. Strict observance of the requirements of this statute would confine our review of the action of the commissioners in this proceeding to the written objections filed, but, inasmuch as the commissioners have taken cognizance of the other objections and passed upon them, and the court at Special Term has also considered and passed upon them, we will examine all of any importance without intending by so doing to decide that any of the parties to such a proceeding have the right to be heard on appeal upon any objections other than those presented in conformity with the express requirement of the statute.

Fi/rst. The commissioners made an award of $15,000 to the Lebanon Hospital Association for damages to buildings belonging to that association. This award is challenged by the appellants. Those buildings are situated upon land marked as parcel ID on the damage map and on the benefit map are marked parcels 255 to 270, 316 to 330. The damages were awarded pursuant to the provisions of section 978 of the New York Consolidation Act and section 980 of the Greater New York charter, which provide that, if the commissioners of estimate and assessment shall judge that any intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening or improving a street or part of a street, they shall proceed to make, together with the other estimates and assessments required by law to be made by them, a just and equitable estimate and assessment of the loss and damage which will accrue i/n consequence of such intended regulation to the respective owners, lessees, parties and persons respectively entitled unto or interested in the said building or buildings so to be injured by the said intended regulation, and the sums or estimates of compensation and recompense for such loss and damage shall be included by the said commissioners in their report.

The evident purpose of this provision of the statutes is to furnish •compensation to the owners of buildings affected injuriously by a street improvement when the land upon which such buildings stand is not actually taken by a proceeding in eminent domain. The statittes do not require that there shall be actual physical injury done to such buildings, but contemplate, among other things, that easements, such as of light, air or access, may be impaired or destroyed in such a way as to render the buildings less valuable than they otherwise would be. It is damage by intended regulation for which compensation is to be made. By intended regulation in this case is meant the establishment of the- permanent grade of Trinity avenue as it will be after the work of opening that avenue is completed. The evidence shows that on the projected Trinity avenue, bn the east of the hospital premises, the opening of the street will require a cut varying in depth from seventeen to twenty feet below the present natural surface of the land.

It was necessary for the hospital association to show that the damage to the buildings is a direct consequence of the regulation of Trinity avenue and not of any other street. It is difficult to understand the situation of these buildings and the land upon which they stand without referring to the maps that were before the commissioners. The land formerly belonged to the Sisters of the Ursuline Convent. The building's were erected in the year 1858. At that time access to them was had from Westchester avenue. North of the property ran One Hundred and Fifty-sixth street, but lands of other owners intervened between that street and the convent property. That property was conveyed to the Lebanon Hospital Association on the 31st of December, 1890, and in the conveyance to it is described as bounded by Westchester avenue on the south, Trinity avenue (not opened) on the east, and Cauldwell avenue on the west, as such streets and avenues were shown on a map filed in the register’s office. Westchester avenue was graded in or about 1885 ; Trinity avenue was not laid out south of One Hundred and Fifty-sixth street until 1819; no grade was fixed for the portion of Trinity avenue adjoining the premises of the hospital association until 1895; ■the grade of Westchester avenue, where Trinity avenue intersects it on the south, and the grade of Trinity avenue north of One. Hundred and Fifty-sixth street, where it intersected that street, had been established since 1811,'and the grade of Trinity avenue was regulated to meet the grades of Westchester avenue and One Hundred and Fifty-sixth street. Cauldwell avenue, on the west of this property, was graded about 1897. When the property was conveyed to the hospital association access was had by. a flight of steps from Westchester avenue, but the proof shows that some access to part of the buildings was had over land fronting on Trinity avenue, and the effect of cutting down the land at' Trinity avenue is to deprive the buildings of that access as it existed. The whole effect ■ of the regulation of Trinity avenue relates to that access, and the change of grade requires either the lowering of the buildings or the adoption of some other means of access to them from Trinity avenue.

That there is some substantial damage to the buildings in this ■situation seems to be obvious, and under the sections of the statutes quoted the hospital association would be entitled to compensation for that damage. We are unable, however, to understand from this record upon what theory or basis, other than that to be alluded to, the sum of $15,000 has been awarded for that damage. The only evidence before the commissioners as to damage consists in testimony of an expert that it would cost about $30,000 to lower the buildings. The commissioners awarded half that sum, but that award, so far as the record shows, is made upon the principle that the damage consisted in the cost of lowering. The real measure of damage, in a case of this kind is the difference between the value of the buildings as they were before and the value as they are after this access is cut off. Section 988 of the Greater New York charter requires that an appeal of this character should be heard and determined by the Appellate Division upon the merits, both as to matters of law and fact. We have before us on this record only the fact that it would cost a certain sum of money to lower these buildings. We have no evidence of any fact that would authorize the commissioners to award this sum of $15,000. Upon what other principle ■or theory they proceeded we do not know, either from the testimony or their report, and, therefore, conclude that they must have acted "upon the principle of allowing damage for lowering the buildings and that they then arbitrarily fixed the amount. They are authorized to view the premises if they deem such view to be necessary or useful and that is all. We are of opinion that substantial damage was done to these buildings within the meaning of the provisions of the laws referred to, but we find nothing in the record except evidence applicable to an erroneous principle by which the commissioners could determine the amount to be awarded. It was not shown that lowering the buildings, was the only method of making them as available for hospital purposes after as before the change of grade was effected.

It is objected by the appellants that an award should not be made because the land to. be taken for the street or highway was dedicated by the Sisters of the Ursuline Cbnvent before the conveyance to the hospital association was made. It is, to say the least, very doubtful whether any . dedication of that land was actually made, but, under the terms and the' obvious purpose of the statutes, it would seem to be clear that damages for land taken for a street and incidental damages for injuries to buildings not taken for a street are entirely separate and independent things, and that, notwithstanding the dedication of the land, the right to compensation for injury to buildings not taken is neither waived nor surrendered by the person so dedicating the land. It may be that when a street is dedicated to public use, the right to grade it .at any grade then (or thereafter to be) established is conceded ; but the. claim of the hospital is based upon the creation of new relations and new. rights arising out of incidental damages to Buildings not embraced within .the area of the dedicated land and arises out of independent statutory authority. . We are satisfied from the whole record that in this case some injury to the. buildings results from the Trinity avenue improvement. No damages were ever claimed or awarded for the opening of Westchester avenue or Oauldwell avenue as-affecting those buildings. The hospital association only claims damage arising from the opening of Trinity avenue, and there is enough-evidence to sustain its claim to some extent — but for the absence of anything in ¡the record to show liow or upon what basis the damages were computed or awarded, unless upon the erroneous principle adverted to, we think the order confirming the report was wrong and that it must be sent back to the commissioners for further consideration.

Second. The appellants insist that the commissioners erroneously-made awards.. to one Clausen for certain parcels of land taken for the bed of Trinity avenue, between the south side of One Hundred' and Fifty-sixth street and the northerly line of whát is now the Lebanon Hospital property. The land so taken was burdened with; easements appurtenant to it. We do not find that there was any dedication of these parcels by the owners for a public street, and it is not to be doubted that the owners of the adjacent land are entitled to substantial damages for the taking of these parcels. (City of Buffalo v. Pratt, 131 N. Y. 293; Matter of One Hundred Seventy-third Street, 78 Hun, 487.) In Matter of One Hundred de Sixteenth Street (1 App. Div. 445) it is said that the owner of property abutting on a street, who owns the fee of the street subject to an easement granted to private individuals, is entitled to substantial damages when the fee is taken by a municipality for a public street. Mr. Justice Beekman in Matter of Ninety-fourth Street (22 Misc. Rep. 37) points out the distinction between the case of City of Buffalo v. Pratt (supra) and Matter of Adams (141 N. Y. 297) which latter case is said to be in conflict with the former. In the present case the fee of the land was taken. Indeed the city concedes that the respondent Clausen was entitled to substantial damages, but insists that the commissioners acted upon an erroneous principle, in that they awarded to Clausen the full fee value of the land taken and that he was only entitled to such value as the land had subject to the existing easements. In the language of the counsel for the city, it was the loss to the abutting owner that was to be estimated, not the unincumbered value of the land in the street.” While it may be that that is the true rule, we do not find from this record that the commissioners failed to apply it. We do not find that they awarded the full value of the unincumbered fee. Not being able to perceive that the commissioners acted upon an erroneous principle, we are not disposed to interfere with the quantum of the award, as that objection is not insisted upon.

Third. The appellants object to the award made to Newberry D. Lawton. That objection involves substantially the same questions as are considered in connection with the Clausen parcels except that the city does not claim that there was any dedication by Law-ton or his grantor of his parcels of land as a public street. The only claim it makes is that it was incumbered with easements in favor of abutting owners and that a full and substantial award was erroneous. The award was not excessive, but the appellants insist that part of the value should go to the owners of the easements of light, air and access —that is to say, Lawton’s grantees, and that the award should be divided between Lawton and his various grantees. The city is not interested in the distribution of the amount of the award. There has been no claim made by the owner of the easements and those easements ceased upon the vesting of title in the city, according to the terms of the instruments by which- they were created. The commissioners had before them all the records relating to the creation of these easements, and one of those conditions was that they should cease when title to the street was taken by the city. There was also evidence before them as to the value of the land with the easements. The record also shows that there was a full presentation to the commissioners of the views of counsel representing the various parties as to the proper rule of damage to be applied. The subject was distinctly presented to them by Mr. Lawton’s counsel of what reduction should be made on account of the existence of the easements. There is sufficient in the record to-show that in the matter of the Lawton parcels the commissioners did not act on an erroneous principle.

Fourth. We have examined the other objections, namely, those relating to the award made to the rector and church wardens of the Church of the Holy Faith, but we do not find any error in principle in making that award.

For the reasons stated above in connection with the property of the Lebanon Hospital, the order must be reversed, with costs, and the report sent back to the commissioners for further consideration.

Ingraham, Hatch and Laughlin, jj., concurredVan Brunt, P. J., dissented in part.

Van Brunt, P. J. (dissenting):

I concur with Mr. Justice Patterson as to the Lebanon Hospital Association.

I dissent as to Lawton and Clausen. It is apparent that a wrong principle was adopted in making -the- awards as to those claimants, the amounts having been fixed without regard to easements. Those easements made the property of Láwton and Clausen of but little value.

Order reversed, with costs, and report sent back to the commissioners for further consideration.  