
    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 Rogers Place (Although not yet Named by Proper Authority), from Dawson Street to East One Hundred and Sixty-fifth 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. City of New York, Appellant; Robert C. Connick and Others, Respondents.
    
      Tiling a map of a proposed street by the department of parks in New York city— dedication thereof and sale of lots thereon -^purchasers, who erect buildings which are injured by the opening of the street, are not entitled to compensation.
    
    Where the department of parks in the city of New York flies a map of a proposed street, in conformity with the provisions of chapter 339 of the Laws of 1874, and thereby establishes the grade thereof, and thereafter the individuals who own the tract through which the proposed street passes, dedicate it to the public use and sell lots abutting on such street, the purchasers of such building lots act at their peril if they erect buildings on the lots which would necessarily be injured by the opening of the street according to the map, and are not entitled to compensation for such injuries.
    
      Appeal by the City of New York, the successor to the Mayor, Aldermen and Commonalty of the City of New York, from so much of an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1901, as directs that “the report of said commissioners be and the same is hereby sent back to said Commissioners of Estimate and Assessment for further proceedings upon the claims of said objectors to have included in said report awards for damages, to the buildings and improvements of the objectors on premises in front of and abutting on said Rogers place, due to the intended regulation of Rogers place.”
    
      John P. Dunn, for the appellant.
    
      Joseph A. Flannery, for the respondents.
   Patterson, J.:

The order from which this appeal is taken, among other things, provided that the report of the commissioners of estimate and assessment in this matter be sent back to such commissioners for further proceedings upon the claims of certain parties who had insisted before such commissioners that they were entitled to awards for damages to buildings and improvements on premises in front of and abutting on Rogers place, arising from the intended regulation of that street. The commissioners had refused to take evidence relating to this alleged damage, and, upon the facts as they appear before us, they were justified in that refusal.

The only right claimants (respondents here) can have to damages to the buildings or improvements upon their property arises out of provisions of the Consolidation Act (Laws of 1882, chap. 410), which, it is claimed, apply to this proceeding. By section 978 of that act, which substantially followed a provision of chapter 160 of the Laws of 1816, it is enacted as follows: “ If the said commissioners of estimate and assessment shall judge that such intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street, or part of a street or public place, they shall proceed to make (together with the other estimates and assessments required by the first above-mentioned act to be made by them) a just and equitable estimate and assessment of the loss and damage which will accrue by and in consequence of such intended regulation to the respective owners, lessees, parties and persons respectively entitled unto or interested iu 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 general report of estimate and assessment.”

The respondents are the owners of land fronting on the proposed Rogers place, and what the city intends to do, as shown in this proceeding, is to open that street and regulate its grade upon a plan originally indicated on a map filed June 4, 1879, by the department of parks and in conformity with the provisions of chapters 329 and 604 of the Laws of 1874. Ho land of the respondents is taken, but buildings are injuriously affected by the opening and grading and regulation of the street. The record before us consists of an agreed statement of facts, which is very unsatisfactory in consequence of its vagueness in some particulars, but it sufficiently appears from it that when the map of 1879 was filed the tract of land over which it was shown that Rogers place was to be laid out was owned by private parties, who divided it into building lots, in the year 1884, and thereafter dedicated Rogers place to the public use as a street and sold lots abutting on such street, and subsequently to 1884, but at what time we are not informed, these, respondents became owners of lots abutting on that street thus dedicated to the public use. Therefore, they bought their lots after the filing of the ¡lian by the park commissioners and after the dedication of the street by their predecessors in ownership. It further appears from the submitted statement of facts that the present grade or intended regulation of Rogers place in front of the respondents’ premises was established by the map of 1879, and that Rogers place in front of such premises was, subsequent to the laying out of the street and the establishment of the grade thereof by the park department, laid out as a street on certain private property maps and was dedicated to the public by the owner or owners thereof, and that the present holders of lands abutting on Rogers place and claimants for damages to buildings by reason of the intended regulation of the street herein, hold title to their property in recognition of this dedication of Rogers place to the publicand, further, that the street laid out as Rogers place and the‘street to which the city in this proceeding has acquired title are the same, in respect of location and contemplated grade or intended regulation, as the Rogers place which was laid out and established by the park department, and which was dedicated by the original owner or owners to the public, and that the buildings of the respondents, claimants for damages, were erected subsequent to the establishment of the grade of the street by the park department and subsequent to the dedication of the Rogers place to the public by the owner or owners of the land.

It would thus appear from this statement of facts that the dedication by the private owners was of a strip of land for a street, which corresponded to that which had been established as a street by the city authorities by the filing of the map in 1879. The respondents placed their buildings upon their lots after 1884, and after their predecessors in title had fixed, by their dedication, the grade of the street for their grantees or others who might become interested in the property. "When these respondents, therefore, took their title to the property they knew of a grade, not only established by the city, but by their predecessors in title, and if they built structures upon their lots, which would necessarily be injured by the regulation of the street upon the original plans, they did so at their peril, and are not brought within the fair equitable meaning or construction of the section of the Consolidation Act under which they claim. It may very well be in some cases that the mere filing of a map by the municipal authorities would not now be held to operate as a prohibition upon owners erecting buildings on their land to conform to natural grades, for proceedings might not be taken to open streets for decades after the filing of maps; but in this case there is another element introduced, as we understand the facts upon the submission made, and we do not think that where buildings are put up upon city lots, under such circumstances, it was the intention of the Legislature to allow damages for the incidental injury caused to such buildings by street openings.

We are, therefore, of the opinion that that part of the order sending the report of the commissioners back for further proceedings should be reversed and the report of the commissioners affirmed, with costs of this appeal against the respondents.

Yan Brunt, P. J., O’Brien and Laughlin, JJ., concurred ; Ingraham, J., concurred in result.

Order, so far as it sends back report to commissioners, reversed, with costs, and report of commissioners confirmed.  