
    The People of the State of New York ex rel. Stephen H. Olin and Peter T. Barlow, as Executors, etc., of Samuel L. M. Barlow, Deceased, Appellants, v. Joseph P. Hennessy and Others, Composing the Board of Assessors of the City of New York, Respondents.
    First Department,
    December 6, 1912.
    Municipal corporations — city of New York — certiorari—damages caused by raising grade of street — particular use of property.
    Where, on certiorari to review the determination of the board of assessors of the city of New York in dismissing the relators’ claim for damages, caused by raising the grade of the road in front of their premises, filed pursuant to section 6 of chapter 423 of the Laws of 1903, as amended by chapter 634 of the Laws of 1905, the facts show that the relators have sustained substantial damages, the determination should be annulled and the board of assessors required to ascertain and award the damages.
    Abutting owners are not limited to the damages caused to the particular use which they made of their lands at the time of the assessment, as it may be temporary.
    Rehearing on the return of a writ of certiorari, pursuant to a remittitur of the Court of Appeals.
    
      Benjamin Trapnell, for the appellant's.
    
      Charles J. Nehrbas [Terence Farley with him on the brief], for the respondents.
   Laughlin, J.:

This is a certiorari proceeding to review the determination of the board of assessors of the city of New York in dismissing the claim of the relators for damages, filed with said board pursuant to the provisions of section 6 of chapter 423 of the Laws of 1903, entitled “An act to provide for the abolition,'discontinuance and avoidance of certain grade crossings in the city of New York,” as amended by chapter 634 of the Laws of 1905, which provides that the city shall “pay all damages to land and buildings fronting on that portion ” of any street or avenue closed and discontinued,pursuant to the provisions of said act, or “whose grades shall be changed in consequence of the provisions of this act, which damages shall be ascertained. and awarded by the board of assessors of the city of New York.” The relators own a tract of land abutting on Fordham road, the grade of which had been established by saw prior to the enactment of the statute of 1903. By virtue of the provisions of that act, as amended, the grade of Ford-ham road in front of the premises of the relators was elevated above the established grade from four to nine feet. The board of assessors entertained the claim and gave hearings thereon; and witnesses were called and testified in behalf of the relators and in behalf of the city., Thereafter the board took up for consideration the relators5 claim for damages and by a majority vote dismissed the claim; but one of the assessors dissented and voted for an award, of $10,000 to the relators. This court on the hearing on the return to the writ of certiorari expressed the opinion that the authority of the court to review the proceeding was limited to questions “ of discretion, or of the regularity of the proceedings,” and since the record did not present such questions the writ was dismissed; and it was specifically stated in the order that the dismissal was “for lack of power and not as a matter of discretion.” The. opinion of this court (150 App. Div. 190) was based, in part, upon the then recent decision of the Appellate Division, Second Department, in People ex rel. Hallock v. Hennessy (146 App. Div. 440), which was subsequently reversed by the Court of Appeals (205 N. Y. 301). The Court of Appeals, in the case, construing a statute (Laws of 1905, chap. 582) containing provisions similar to those herein quoted from the statute under which the relators’ claim was filed, but which expressly provided that the board of assessors was authorized and empowered in “its discretion” to estimate and determine the damages, decided that the discretionary power was with respect to entertaining the claim, and that having entertained and heard the claim, the action of the board was judicial and subject to. review with respect to jurisdiction, the regularity of the proceedings, and the amount of the award. On the review of the former decision of this court herein the Court of Appeals wrote an opinion stating, among other things, the following: “ The action of the board of assessors in ascertaining and awarding such damages is judicial in nature and, therefore, subject to review by the courts,” and cited its decision in People ex rel. Hallock v. Hennessy (supra) as' authority for that proposition and remitted the case to this court “to hear and determine.” (People ex rel. Olin v. Hennessy, 206 N. Y. 33.) If the board of assessors were authorized on the evidence before them to decline to award any damages to the relators, then the action of the board in dismissing the claim should not be annulled, although it is evident, I think, that the claim was not dismissed upon that ground. In view of the evidence it is fairly to be inferred that the majority of the board were of opinion that they were vested with discretion to award or to decline to award damages. The relators presented evidence tending to show that their premises had been damaged to the extent of $70,000. One of the city’s experts estimated the damages at $24,125 and another at $14,000. It is claimed in behalf of the city that inasmuch as the relators’ premises were to be used for the purposes of storing gas in a tank which was being erected thereon at the time, no damages would be suffered by the change of grade. There is no evidence to support this contention; and moreover, the owners have the right to use their premises for any lawful purpose and they are not limited to the damages sustained thereto by the particular use, which may be temporary, made of the premises at the time of the assessment of damages. The facts show without further argument that the relators have sustained substantial damages, and that the board of assessors erred in dismissing their claim.

It follows that the determination of the board of assessors in dismissing the claim of the relators should be annulled, with fifty dollars costs and disbursements to the relators, and the board of assessors should be required to proceed and ascertain and award the damages sustained by the relators in accordance with the provisions of the act of the Legislature.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and board of assessors directed to proceed as stated in opinion. Order to be settled on notice.  