
    The People of the State of New York ex rel. The City of New York, Relator, v. William D. Dickey, Chairman, and Others, Commissioners under Chapter 537 of the Laws of 1893, as Amended by Chapter 567 of the Laws of 1894, Chapter 747 of the Laws of 1905, and Other Acts; and United States Trust Company of New York, as Executor, etc., of Josephine L. Horton, Deceased, Respondents.
    First Department,
    March 22, 1912.
    Municipal corporations — widening street, city of New York — effect of widening on grade — damages.
    Where on the widening of a street in the city of New York the land of an abutting owner was left below grade owing to the natural contour of the land, but the grade of the street ii self was not changed, commissioners acting under the authority of chapter 537 of the Laws of 1893, as amended, have no authority to award the owner substantial damages.
    Certiorari issued out of the Supreme Court and attested on the 13th day of June, 1911, directed to William D. Dickey, chairman, and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in relation to the trial of a certain claim for damages filed by the United States Trust Company of New York, as executor, etc.
    
      
      Charles J. Nehrbas, for the relator.
    
      Benjamin Trapnell, for the respondents.
   Scott, J.:

The United States Trust Company, as executor, etc., of Josephine L. Horton, deceased, has been awarded substantial damages as for a change of grade of Franklin avenue in the city of New York. That avenue was originally laid out as a fifty-foot street, and, by a map filed in 1894, it was made a sixty-foot street, being widened ten feet on the side upon which claimant’s property abutted. This ten-foot strip was acquired by the city of New York, and an award therefor made to the then owner of the property, and in 1897 the street was physically regulated and graded as a sixty-foot street upon the grade established by the map of 1894.

Claimant’s property extends from Franklin avenue to Third avenue, sloping downward very decidedly toward the latter avenue, the difference between the grades of these avenues being from seventeen to twenty-two feet. In consequence of this natural contour of the land the extension of Franklin avenue ten feet towards Third avenue left that portion of claimant’s land which abutted upon the widened street some seven feet below the grade of the street, which grade, however, remained substantially as it had been, the grade established by the map of 1894 differing from the physical surface as it had existed since 1871 by less than one-half a foot.

The commissioners have awarded damages upon the theory that there has been a seven-foot change of grade.

The act from which the commissioners derive authority to proceed (Laws of 1894, chap. 567, § 1, amdg. Laws of 1893, chap. 537, § 1 et seq.) gives them power to award damages only which have been sustained by reason of a change of grade of a street or avenue. It is manifest that in the present case the grade of Franklin avenue has not been changed except to an insignificant extent. It is true that there has been a change in the relative grades of the street and of the land abutting upon it, but this is due to the widening of the street, and not to any change in its grade, and if the claimant has suffered damage it is a result of the widening of the street, not of any change in its grade, for that remains substantially as it has always been.

It follows that the writ must be sustained and tho determination of the commissioners annulled, with fifty dollars costs and disbursements.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Writ sustained and determination of commissioners annulled, with fifty dollars costs and disbursements. Order to be settled on notice.  