
    Matter of the Application of the City of New York, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired to the Lands and Premises Required for the Opening and Extending of Thirteenth Avenue (Although not yet Named by Proper Authority), from Jackson Avenue, to Flushing Avenue, in the First Ward, Borough of Queens, in the City of New York.
    (Supreme Court, Kings Special Term,
    August, 1912.)
    New York city — street opening proceedings — Greater New York charter, §§ 979 and 980.
    In a street opening proceeding there can be no award of damages resulting from a change of grade made under a contract duly let prior to the appointment of commissioners of estimate.
    The fact that the work contemplated by said contract may not have been actually completed at the time of the appointment of the commissioners of estimate does not bring the ease within the provisions of sections 979 and 980 of the Greater New York charter authorizing said commissioners to make an award from an “ intended regulation " of the street, for such provisions do not apply to a change of grade which is wholly independent of the street proceeding.
    Motion to confirm report of commissioners of estimate and assessment.
    
      John Tí. McMullen, for motion.
    Archibald R. Watson, corporation counsel (Millard F. Kuh, Walter 0. Sheppard, Joel J. Squier, of counsel), for the City of Mew York.
    Hugo Hirsh (Thomas W. Henry, of counsel), for an objector.
    Harold 0. Knoeppel, for objectors.
   Benedict, J.

In Matter of Prospect Street, 77 Misc. Rep. 254, I held that commissioners of estimate in a street opening proceeding could not make an award for damages resulting from a change, of grade made prior to their appointment. The present case differs from the case cited in that the physical work of changing the grade of the street-in question had not, as is claimed by the objector and as I shall assume, been completed when the commissioners were appointed. But it had been initiated by the local board of improvements and approved and authorized by the board of estimate, and the contract for the work had been let, long before the appointment of the commissioners. I do not think that the fact, if it be the fact, that the work was not actually completed at the time of the appointment of the commissioners brings this case within the provisions of the charter authorizing the commissioners to make an award for damages resulting from an “ intended regulation ” of the street (§§ 979, 980). 'Section 979 provides in part that the commissioners may order a profile or plan * * * showing the intended regulation of the street or part of a street, with regard to the opening of which they have been appointed, as to the elevation or depression thereof, after the same shall he opened, extended, enlarged, straightened, altered, or otherwise improved, as the case may be; and also profiles or plans * * * showing the intended regulation of the adjacent street or streets, as to the elevation or depression thereof, after such improvement” Section 980 as in force at the time of the appointment of the commissioners in this proceeding, provided, among other things, as follows: “ If the said 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, altering, or improving such street or part of a street, they shall proceed to make, together with the other estimate 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, by and in-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 and included in the assessment for benefit.” Ho substantial change, so far as the question now under consideration is concerned, has been made by subsequent amendments.

The “ intended regulation ” contemplated by these sections is obviously a regulation to be made in connection with the opening of the street; and they do not apply to a change of grade which is wholly independent of the street opening proceedings, a-s is the case here, whether' the actual work of grading is completed at the time of the commencement of the street opening proceedings or not.

The authorities cited on behalf of the objector serve to confirm this conclusion. In Matter of Mayor (Perry Avenue), 118 App. Div. 874, the profile map was, it is true, filed prior to the appointment of the commissioners; but it is apparent that the regulation was not intended to be made until after tbe acquirement of the land condemned, for the Appellate Division said (p. 878) : “ It is said that Perry avenue was actually worked and used as a street, at its natural grade, for some time before proceedings for its acquisition by the city were initiated, but the profile map filed in 1895 shows that it is proposed, after acquisition, to raise its grade about ten feet.”

And in Matter of Mayor (White Plains Road), 106 App. Div. 133, the court said (p. 136) : “ It is clear that the proposed change of grade is an incident to the widening of the street for which this proceeding was instituted.”

The objection interposed on behalf of the owner of damage parcel Ho. 92-A is therefore overruled.

With respect to the claim of the owners of damage parcel Ho. 171 for damages for the closing of Fourteenth avenue, I understand from the briefs that the corporation counsel and the counsel for the claimants have agreed that this claim shall be presented to the same commissioners — but whether as part of this proceeding or as an independent proceeding they do not seem to have wholly agreed. That matter can be determined on the settlement of the order.

Subject to proper provisions for the presentation of this claim the report of the commissioners will be confirmed.

Ordered accordingly.  