
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., for the Purpose of Opening and Extending Avenue “C” from Gravesend Avenue to Coney Island, in the Borough of Brooklyn, City of New York. Mabel H. Looby, Appellant.
    Second Department,
    May 9, 1912.
    ' Mew York city — change of grade of street — facts considered by commissioners in making award — damages to adjoining property — impairment of access.
    In some eases an award less than the amount of damages testified to by any of the experts called either by the property owner or the city of Mew York, made by commissioners appointed pursuant to Laws of 1901, chapter 466, section 980, as amended by Laws of 1906, chapter 658, section 8, and Laws of 1909, chapter 394, section 3, may be sustained where it satisfactorily appears that the commissioners acted in reliance upon their own view of the premises, made at or about the time when the award was made, and the result does not seem inequitable. But when improper rules have been adopted in arriving at the amount of damages, such variance will afford strong ground for presuming that such adoption has affected the result.
    The statute does not by express words limit its provisions to buildings abutting upon the street to be graded, and it is not necessary that actual physical injury should result.
    
      Hence, the award of commissioners should not be affirmed where they have failed to consider the effect of a change of grade upon buildings adjoining- those abutting upon the street. ■
    The.fact that there is one way of- access to adjoining buildings does not prevent compensation for the impairment of another way, provided it results in injury.
    Commissioners are required to estimate the damage as it exists at the time of making them report, unaffected by contingencies which may never arise.
    Hirschberg-, J., dissented in part.
    Appeal by Mabel H. Looby from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of' the county of Kings on the 18th day of April, 1910.
    
      Herbert G. Andrews [Hugo Hirsh with him on the brief], for the appellant.
    
      Edward Riegelmann [Archibald R. Watson with him on the brief], for the respondent.
   Burr, J.:

This is an appeal from an order confirming the report of the commissioners of estimate and assessment in the above-entitled proceeding, so far as it affects a lot shown' on the damage map and known as parcel 63-a, and also shown on the assessment map for benefit as lot 183. This plot of ground is situated on the northwest corner. of Coney Island avenue and Avenue C. It has a frontage of approximately 100 feet on Coney Island avenue and of Y8 feet on Avenue 0. Upon the front of the plot and facing Coney Island avenue there are six buildings. Upon the corner is a three-story frame building, with a store on the ground floor and flats above. The adjoining buildings, five in number, áre stores one story in height, used for carrying on various trades and callings. Upon the rear of the plot is a frame stable and wagon shed. .. Between this and the buildings fronting on Coney Island avenue is an open space or courtyard used as an entranceway to the barn and shed, and also as a means of access from Avenue C to the rear of the one-story stores. ' All of the tenants of these stores have made use of this entrance or courtyard for their business, with one exception. In connection with the. opening of Avenue C, a •change of grade was made, and commissioners were appointed to determine the loss and damage resulting from the intended regulation of such street. (Laws of 1901, chap. 466, § 980, as amd. by Laws of 1906, chap. 658, § 8, and Laws of 1909, chap, 394, § 3.) The award made in this case is less than the amount of damage testified to by any of the experts called either by the property owner or the city. It may be that in some cases such an award will be sustained where it satisfactorily appears that the commissioners acted in reliance upon their own view of the premises, made at or about the time when the award was made, and the result does not seem inequitable. (Matter of City of New York [Titus Street], 139 App. Div. 238.) But when improper rules have been adopted in arriving at the amount of damages, such variance will afford, strong ground for presuming that such adoption has affected the result. In this case the commissioners applied an improper rule. The statute above referred to provides that “If the said commissioners of estimate 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 whole or in part in the assessment for benefit, provided the board of estimate and apportionment so specifically directs. ” The commissioners announced that in arriving at their conclusion as to the damages sustained by the appellant by reason of the intended regulation of Avenue 0, they would consider only the effect thereof upon the three-story building upon the comer, and the barn in the rear thereof, and would exclude from such consideration any effect upon the five one-story stores adjoining. In this they erred. The statute does not by express-words limit its provisions to buildings abutting upon the street to be regulated. In order that property should be benefited by the. opening of a street, it is not necessary that it should be within the actual limits of the improvement made. (Stevenson v. Mayor, etc., 1 Hun, 51.) The same rule should apply in estimating damage. Neither is it necessary that actual physical injury should result to buildings from the intended regulation. The statute contemplates, among other things, that easements, such as of light, air or access, may be impaired or destroyed in such a way as to render the buildings less valuable than they otherwise would be.” (Matter of Mayor [Trinity Ave.], 81 App. Div. 218.) The fact that these one-story buildings have a means of access to the front thereof over Coney Island avenue, as well as access through Avenue 0 to the rear, will not prevent compensation for the impairment of the latter, provided it results in injury. In the Trinity Avenue case there was access to the buildings for which damage was claimed over Westchester avenue as well as Trinity avenue, yet damages were allowed for impairment of the latter. As a reason for the ruling made, the commissioners stated that the property owner might sell the corner property, thereby cutting off all means of access over Avenue C to the rear of the remaining buildings. The answer to this is that she has not done so, and . the commissioners are required to estimate the damage as it exists at the time of making their report, unaffected by a contingency which may never arise.

So much of the order as is appealed from should be reversed, with ten dollars costs and disbursements, - and the proceedings remitted to the commissioners to proceed in accordance with this opinion.

Hirschberg, Thomas, Carr and Woodward, JJ., concurred; Hirschberg, J., however, being of the opinion that the proceedings should be sent to new commissioners.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and proceedings remitted to the commissioners to proceed in accordance with opinion.  