
    The People of the State of New York ex rel. Ashbel P. Fitch, Comptroller of the City of New York, Relator, v. 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, Respondents, and Henry Zubiller and Louis Schaefer, Executors, etc., Claimants.
    
      Grade damage commissioners — the awa/i’d must be to infants where they hold, the title to lands.
    
    Under the acts (Laws of 1893, chap. 537, §§ 1, 2, 3, as amended by Laws of 1894, chap. 567) authorizing commissioners appointed thereunder, to determine the damages to “ persons owning lands” in the territory in question in New York city, resulting from changes of grades, damages due to infants (who by the death of their father, the former owner, and of their mother, the life tenant under the father’s will, before the passage of chapter 587 of the Laws of 1893, became tenants in common of the premises) cannot he awarded by the commissioners to administrators with the will annexed of the father, who were also executors of the mother and, by the terms of her will, testamentary guardians of the persons and estates of the infants, as in none of these capacities are they “persons owning” the lands in question.
    Certiorari issued out of the Supreme Court and attested on the 28th day of October, 1897, directed to Daniel Lord and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings in regard to an award made to the claimants by the said respondents as commissioners of the Change of Grade Damage Commission.
    Chapter 537 of the Laws of 1893 provides :
    “Section 1. All persons owning lands, tenements or hereditaments * * * who have sustained damages by reason of a change of grade of any street or avenue * * * shall be entitled to prove and recover the same from the mayor,” etc.
    “ § 2. * * * Said commissioners, or a majority of them, shall have exclusive jurisdiction to estimate the loss and damage which each owner of land, or land and building, fronting on any such street or avenue, * * * has sustained by reason of such change, when such owner shall have filed with the comptroller of said city a claim for damages. * * * Such claim must be filed with said comptroller * * * within six months after the first public meeting of said commissioners.
    “ § 3. It shall be the duty of said commissioners * * * after duly considering the evidence, to award such damages to the respective parties filing such claims as shall be, under the circumstances and on the evidence presented, just and equitable. * * *”
    The amended act (Chap. 567, Laws of 1894) does not materially alter, so far as the questions here involved are concerned, the provisions of the original act.
    The claim herein filed was entitled : “ In the matter of the claim for damages of Henry Zubiller and Louis Schaefer, executors, for change of grade, etc.” And in the petition of Henry Zubiller it is stated that he is an executor of the former owner in fee of certain premises. Tlie claim was filed within six months, as provided by the act.
    The findings of the commissioners, so far as material, are: “ First. * * * That said claimants have satisfactorily established before us ownership of said premises; that a motion was duly made by claimants to amend the notice of claim herein so as to read Henry Zubiller and Louis Schaefer, as administrators with the will annexed of the estate of John F. Kocher, deceased, instead of 1 Henry Zubiller and Louis Schaefer, executors,’ which motion was duly granted. * * *
    “ Fourth. That, upon the evidence presented, we award as just and equitable damages, under the circumstances of this case, to the said Henry Zubiller and Louis Schaefer, as administrators with the will annexed, of the estate of John F. Kocher, deceased, the sum of,” etc.
    It is conceded with respect to the title of this property that John F. Kocher died seized in fee of the same on January 6,1891. He devised the property to his wife, Margaret Kocher, for life, with remainder to his children, who were minors. Margaret Kocher, the wife, died in April, 1892, and the life estate thus terminated. But she nominated Henry Zubiller, George Kocher and Louis Schaefer as her executors, and also guardians of the persons and estates of her infant children, and they subsequently qualified as testamentary guardians under her will. Thus, before the passage of the act of 1893, the title to this property was vested in fee in the children as tenants in common. The children are still living.
    
      Robert E. Beatty, for the relator.
    
      Ernest Hall, for the respondents.
   O’Brien, J.:

The appellant insists that the claim was filed by, and the award made to, the wrong parties. It is certain that the claim as filed did not conform to the act, because the claimants Henry Zubiller and Louis Schaefer must be regarded legally as strangers to the title. They were administrators with the will annexed of the original owner, executors of the will of the life tenant, and guardians, under the will of the mother, of the infant children remaining. But in neither of these capacities did they take any title to or become owners of the property.

It is admitted by the return that these claimants never had title to the property in question, “ except as guardians as aforesaid.” But the guardians have not title to the infants’ property. Furthermore, the commissioners made the award to the claimants as administrators, instead of as guardians; and if that determination is to stand, their rights as guardians are not strictly involved. It was said in the case of People ex rel. Fitch v. Lord (9 App. Div. 460), which involved a claim before these same commissioners and a construction of the acts in question upon another point: “ The acts are themselves remedial and should be liberally construed. (People ex rel. Purdy v. Fitch, 147 N. Y. 355.) Such legislation, as was said in People ex rel. Brisbane v. Zoll (97 N. Y. 203), ‘ should receive a just and liberal construction which will tend to'advance the remedy.’ ”

The difficulty here, however, is that no construction, however liberal, which would stop short of an attempt on our part to make new legislation, could aid the respondents. The act expressly limits the right to file a claim and to prove and recover damages to “ persons owning lands; ” and it is admitted by the return that these claimants never had any title to the property in question “ except as guardians as aforesaid.” But the guardians as such have no title to the infants’ property. Apart from this, as the commissioners have made the award to the claimants as administrators instead of as guardians, their rights as guardians are not involved. Whether we regard the claimants as administrators with the will annexed of the original owner, as executors of the will of the life tenant, or as guardians under that will of the two infant children as remainder-men, in none of these capacities have they title to the property. Legally, their claim is in a capacity adverse to the children who, as remaindermen under the will of their father, were at the time of the passage of the act, and now are, vested with the fee as tenants in common. It is clear that the award to the claimants as administrators of the original owner cannot be sustained, because it would be in derogation of the title of the true owners of the property. The testator of the claimants died before the passage of the act, at a time when no right to recover for change of grade existed. At common law, no such right was given, and it has been obtained purely by force of the statute, and only the persons upon whom the statute conferred the right to such awards are entitled to file a claim therefor or to receive it.

It appearing then, as said, that these claimants at the time of the filing of the claim and the making of the award were strangers to the title, the judgment of the commissioners must be reversed and the claim dismissed, with costs.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment of commissioners reversed and claim dismissed, with costs.  