
    The People of the State of New York ex rel. Henry Volkening, as Executor, etc., of Bertha Volkening, Deceased, Respondent, v. William A. Prendergast, as Comptroller of the City of New York, Appellant.
    First Department,
    May 31, 1912.
    Municipal corporations — change of street grade, city of New York — right of abutting owner to damages — ownership at date fixed by statute essential.
    A landowner in the city of New York, in order to be entitled to damages for a change of grade in a street, under chapter 587 of the Laws of 1893, as amended, must not only have been the owner of the lands at the time the grade was changed, but also at the date specified in the statute, namely, May 9, 1894
    At common law a landowner is not entitled to damages occasioned by the change in a street grade. Such right is solely the creation of statute. Hence the Legislature may make the right to damages dependent upon any condition whatsoever.
    Dowling, J., dissented.
    Appeal by the defendant,' William A. Prendergast, as comptroller of the city of New York, from an order of the Supreme Court, 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 December, 1911, granting a peremptory writ of mandamus.
    
      Charles J. Nehrbas, for the appellant.
    
      Thomas F. Gilroy, Jr., for the respondent.
   McLaughlin, J.:

The relator’s testatrix on May 10, 1889, acquired title to certain real estate in the city of New York designated on the tax maps of the city as Block No. 2414, Lots Nos. 1, 3, 4, 5, 6, Y,

8 and 9.” Some time in 1892 she conveyed the title to all of the lots to one Algie by a deed of conveyance which was recorded ■ in the register’s office of the county of New York on October eighteenth of that year. The lots abutted on Morris avenue, the grade of which was physically changed in 1891 and while she held the title.

On July 31, 1905, pursuant to chapter 537 of the Laws of 1893, as amended hy chapter 567 of the Laws of 1894 and chapter 747 of the Laws of 1905, she filed with the comptroller and the corporation counsel of the city of New York a claim for damages to the lots referred to by reason of the change of grade of the avenue, and on January 26, 1911, the change of grade damage commission awarded to the relator for the damages sustained by his testatrix' the sum of $800, the payment of which, together with the accrued interest thereon, was, on February 16, 1911, duly demanded from the appellant, as comptroller of the city. The payment was refused, and thereupon a motion was made for a peremptory writ of mandamus to compel the comptroller to make it; the motion was granted, and he appeals from the order.

I am -of the opinion that the comptroller was justified in refusing to make the payment. Chapter 747 of the Laws of 1905 provides, among other things, that “the owner of the property affected, at the date of the enactment of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, shall be entitled to the award of said commissioners, if any such be made.” Thé relator’s testatrix, while the owner of the lots at the time the grade of the avenue was changed, was not the owner on May 9, 1894, and, therefore, by the express language of the statute, she was not entitled to an award for damages. In order to be so entitled she not only had to be the owner at the time the change was made (People ex rel. City of New York v. Stillings, 134 App. Div. 480; affd., 200 N. Y. 525), but also at the time specified in the statute, namely, May 9, 1894.

At common law one was not entitled to damages to property abutting on a street occasioned by its change of grade. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Sauer v. City of New York, 180 id. 27.) The only right to such damages is that given by statute. (Sauer v. City of New York, supra; People ex rel. Central Trust Co. v. Stillings, 136 App. Div. 438; affd., 198 N. Y. 504.) When the Legislature granted, as it did by the act of 1905, the right to damages, it had undoubted power to make such right, and the .remedy to enforce it, dependent upon any condition which it saw fit to ■ impose. It could withhold the remedy to enforce such claim altogether, or limit it to those who owned property at a certain time; and the latter is precisely what it did, by conferring the remedy to enforce claims for damages of this character only upon those who owned on May 9, 1894, the property damaged. In other words, the act of 1905 created a right not theretofore existing, but it also defined the extent of such right and the method by which it might he enforced. (Heiser v. Mayor, etc., 104 N. Y. 68.) Or, as said by Judge Chase, with whom the other members of the court concurred, in Matter of Melenbacker v. Village of Salamanca (188 N. Y. 370): “As the claim for damages arising by a change of grade of a street or highway is given by statute where it" did not. exist at common law, the statutory remedy is exclusive, and must be followed by those seeking relief. ”

The purpose of the act of 1905 is obvious. It was to reheve the owners intended to be benefited by the acts of 1893 and 1894 who had neglected to file claims under those statutes. In order to keep the benefits of the act within the limits contemplated, permission to enforce' claims under the act of 1905 was made to depend upon the ownership of the "land damaged on the date of the enactment of chapter 567 of the Laws of 1894, namely, May 9, 1894. Nor is this view in any way in conflict with People ex rel. City of New York v. Stillings (134 App. Div. 480; affd., 200 N. Y. 525). All that was held in that case was that a person who owned property on May 9, 1894, but not at the time when the grade was physically changed, was not entitled to an award of substantial damages; but it was not decided, nor was any intimation made to such effect, that a person who owned property when it was damaged, but did not own it on May 9, 1894, is entitled to an award.

If the foregoing views be correct, then the change of grade damage commission was without jurisdiction and was not authorized to make the award to the relator, because his testatrix did not own any of the property damaged on May 9, 1894.

In reaching this conclusion I have not taken into consideration the fact that an award for damages was made and paid to one who acquired title to lot “5 ” after the grade was changed.. It may be that this award and payment under the Stillings Case was erroneous, but it can have no effect whatever so far as the legal rights of the parties here under consideration are concerned. '

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.

Ingraham, P. J., Clarke and Scott, JJ., concurred; Dowling, J., dissented

' Order reversed, with ten dollars costs and disbursements, i and motion denied, with fifty dollars costs.  