
    The People of the State of New York ex rel. Bird S. Coler, as Comptroller of the City of New York, Relator, v. Daniel Lord and Others, as Commissioners Appointed under the Provisions of Chapter 537 of the Laws of 1893, and Chapter 567 of the Laws of 1894, and Frances Kaesemeyer, Claimant, Respondents.
    
      Eminent domain—damages, to whom awarded, for the change of grade in New York city by the depression of the Harlem railway.
    
    A claim was filed by a party claiming to be the owner of premises in the city of New York, damaged by the change of grade connected with the depression of the tracks of the Harlem Railway Company, and in the proceedings before commissioners appointed under the provisions of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, the claim was amended so as to include as a claimant an infant child of the original claimant, the infant being entitled to the fee of one-half of the premises, subject to the dower interest of his mother, who was herself entitled, in addition to her dower, to a life estate in the other half which she had inherited from a deceased child.
    
      Held, that the fact that the living infant child was not represented before the commissioners and made no application for compensation, did not justify the commissioners in awarding to the mother the value of that unrepresented interest, as well as of the interest to which she was entitled in her own right;
    That the mother was entitled to recover the damages to the life interest inherited from the deceased child, whether that interest accrued to her before or after the passage of the act of 1893, as it appeared that she was the owner of it at the time the petition was presented, and when the act of 1894 giving owners the right to file a petition was passed;
    That no award having been made during the life of the child from whom the petitioner inherited, her claim was one existing in favor of the owner of a life estate, arising on the death of the child, and came within the provision of the statute respecting an award to owners of the property.
    Certiorari issued out of the Supreme Court and attested on the 13tli day of May, 1898, directed to Daniel Lord and others, commissioners appointed under the provisions of chapter 537 of the Laws of 1893, and chapter 567 of the Laws of 1894, and Frances Kaesemeyer, claimant, commanding them to certify and return to the office of the clerk of the county of New York all acts and proceedings had by them and each of them upon the claim of Frances Kaesemeyer, together with their several appointments as commissioners.
    
      Robert 0. JBeatty, for the relator.
    
      Ernest Hall, for the respondents.
   Patterson, J.:

The writ of certiorari in this case was issued to review an award made by the respondents, commissioners appointed under the provisions of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, to estimate the damages caused to owners of lands, etc., by the change of grade of streets and avenues necessitated by an improvement connected with the depression of the tracks of the Harlem Railway Company in the city of Hew York. By those statutes it is provided, among other things, that all persons owning lands, tenements or hereditaments who have sustained damages by reason of the change of grade of any street or avenue, shall be entitled to prove and recover the same; such proof to be made before commissioners who, or a majority of whom, shall have exclusive jurisdiction to estimate the loss and damage which each owner of land, or of a building fronting on any such street or avenue, has sustained hy reason of such change, when such owner shall have filed with the comptroller of the city a claim for damages, and that it shall be the duty of the commissioners, after duly considering the evidence, to award such damages to the respective persons filing such claims, as shall be, under the circumstances and on the evidence presented, just and equitable: The petitioner in this proceeding, Frances Kaesemeyer, filed a claim with the comptroller within the proper time, and in that claim set forth that she was the owner in fee of certain premises located on the south side of One Hundred and Seventy-fifth street, in the twenty-fourth ward of the city of Hew York, which premises were designated on the tax map as ward Ho. 37 in block Ho. 1173. Jurisdictional facts were then set forth, the nature of the damage to the land was also stated, and it was averred that the entire amount of loss and damage suffered by the petitioner was the sum of $1,000. Acting upon the evidence presented to them, the commissioners made a report that the whole damage to the fee was the sum of $500. They decided that all of that amount was payable to her, and they so awarded it. The relator, the comptroller of the city of Hew York, objects to this award, claiming that under the proof as adduced, showing what title and interest the petitioner had in the premises, she was not entitled to the whole of such award, but only to a proportionate part thereof.

The papers now before the court bearing upon the merits of the controversy consist of the petition and the return of the commissioners, and by the agreement of the parties, the facts relating to the petitioner's title are admitted to be as stated in the return of the commissioners, and it appears therefrom that on November 14,1892, the premises belonged in fee to one Julius Kaesemeyer, who died on that day intestate, leaving a widow, the claimant here, and two children. One of the children died intestate on the 6th day of May, 1893, before any claim had been filed concerning these premises with 'the commissioners. The other infant child is still living. On the proceedings before the commissioners, the notice of claim filed by Frances Kaesemeyer, in which she claimed to be the owner of the whole fee, was amended so as to make it a claim of Frances Kaesemeyer and Julius Kaesemeyer, the surviving infant. That amendment was objected to by the corporation counsel, but no contest is now raised respecting it, the only question being as to the propriety of the award of the whole $500 to the petitioner, Frances Kaesemeyer.

We think the award as made by the commissioners was erroneous in part. The ownership of the property at the time the claim was filed and when the award was made was in Frances Kaesemeyer the petitioner, to the extent of her dower interest, and a life estate in the one-half share of the deceased child. The fee of the other half vested in the surviving child, for whose interest no claim for damage was made. The commissioners decided that the proportionate part of the award of $500 that the dower estate of the claimant bears to the whole fee was $85.58; that the proportionate part of the award that the life estate in the undivided one-half, subject to the dower, bears to the fee is $106.39, and we are of the opinion that those two sums are all to which the petitioner was entitled. The owner of land under the statute is entitled to an award of such damages as that owner may have sustained by reason of a change of grade. That must necessarily be the damage to the interest of that particular owner, and cannot be such as is sustained by any other owner. These commissioners have separated that damage; have not only decided that it was capable of ascertainment as to each particular interest, hut have fixed the exact amount of the damage.to the dower interest, and of the damage to the life estate of the petitioner in the one-lialf that had belonged to her deceased child. The effect of these statutes cannot be to enlarge the interest of a part owner or to give him any more damage than he has actually sustained. If all the interests had been represented and proven before the commissioners, it is not to be doubted that they would have been compelled to make the distribution of the $500 among all the owners according to their respective interests; that is to say, to the petitioner the value of her dower interest and the value of her life estate in the one-lialf, and to the other owner the value of his fee. That the other owner is not represented and makes no application for compensation is no reason why the commissioners should award to the petitioner the value of that unrepresented interest. It did not belong to the petitioner; she was not the owner of it, and the purpose of the statute is to give to those who demand it compensation for the damage to the interests they are entitled in the land.

It is conceded by the city that the dower interest must be paid for, but it is objected that there is no right in the petitioner to the value of the life interest in the half which belonged to the deceased child. We think the petitioner is entitled to that interest. She was the owner of it at the time the petition was presented. It is immaterial whether that interest accrued before or after the passage of the act of 1893. It belonged to her when her petition was filed and when the act of 1894 was passed, which gave to the owner the right to file such a petition. It did not pass to an administrator of the deceased child (People ex rel. Fitch v. Lord, 24 App. Div. 137), for it was a claim which belonged to the owner of the estate. Had an award been made before the death of the child a different question would have been presented ; but as it was a claim existing in favor of the owner of a life estate, arising on the death of the child, it comes within the provision of the statute respecting an award to owners of the property.

We think, therefore, the conclusion of the commissioners was wrong and that their award should be modified by reducing it to-the sum of $191.97, without costs.

Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred.

Award of the commissioners modified by reducing it to the sum. of $191.97, without costs.  