Opinion
April 8, 1909.
Barclay E.V. McCarty of counsel [ Jared G. Baldwin, Jr., and John M. Harrington with him on the brief], for the relator.
Theodore Connoly of counsel [ Terence Farley, Stephen O'Brien with him on the brief], Francis K. Pendleton, Corporation Counsel, for the respondents.
The relator owns property lying between St. Ann's avenue, Westchester avenue, Brook avenue and East One Hundred and Forty-ninth street in the borough of the Bronx, and filed a claim for damages alleged to have been caused to said property by the elevation of the grades of St. Ann's avenue and Westchester avenue. The Port Morris branch of the New York and Harlem railroad passed under St. Ann's and Westchester avenues at this point. The sole question involved is whether the change of grade damage commission has jurisdiction in the premises.
We have lately had occasion to consider the statutes under which the commission acts, in People ex rel. Astor v. Stillings ( 124 App. Div. 195), and confine our examination to the precise point involved. By chapter 567 of the Laws of 1894, chapter 537 of the Laws of 1893, providing for the change of grade damage commission, was amended so as to read: "All persons owning lands, tenements or hereditaments in One Hundred and Fifty-seventh street, formerly Prospect street, or in any other street or avenue in the twenty-third or twenty-fourth wards of the city of New York, which lands, tenements or hereditaments have sustained damages, or will sustain damages, by reason of a change of grade of any street or avenue, which change was made in conformity with the provisions of chapter eight hundred and forty-one of the laws of eighteen hundred and sixty-eight; chapters three hundred and twenty-nine and six hundred and four of the laws of eighteen hundred and seventy-four; chapter four hundred and thirty-six of the laws of eighteen hundred and seventy-six; chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven, or chapter three hundred and twenty-nine of the laws of eighteen hundred and ninety-two, * * * shall be entitled to prove and recover the same from the mayor, aldermen and commonalty of the city of New York, as hereinafter provided. Provided, however, that as to lands or lands and buildings fronting on any street or avenue, except One Hundred and Fifty seventh street, the benefits under this act shall be limited to the area within which grades are changed as shown on any map filed pursuant to chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven."
It is conceded that unless the damage to the property in question was caused by change of grade shown on a map filed pursuant to chapter 721 of the Laws of 1887, the action of the commissioners in rejecting the claim for want of jurisdiction was proper. Said act of 1887 authorized the department of public parks to agree with the New York and Harlem Railroad Company upon plans for the depression of the tracks and changing the grades of the railroads of the New York and Harlem Railroad Company, and carrying any streets in the twenty-third and twenty-fourth wards across, on, over or under said railroads, which plans, when so agreed upon, should be executed and carried out forthwith by said railroad company at their expense, and the grades of the streets so agreed on for the crossing of said railroads should be the established grades of such streets, and, in furtherance of the powers thereby conferred, the park department was granted the power to alter, amend or revise any map or maps, plan or plans hereafter or heretofore adopted by said department according to law, and to make and file new maps or plans to the extent deemed proper in order to show such alteration, amendment and revision.
On the 9th of July, 1889, the park department and the New York and Harlem Railroad Company entered into an agreement for the depression of the tracks and changing the grades of that portion of the Port Morris branch of the New York and Harlem railroad between East One Hundred and Fifty-sixth street and the main line of said railroad at East One Hundred and Sixty-fifth street, as shown on a map entitled "A Plan for the depression of the tracks and changing of grades of that portion of Port Morris branch of the New York Harlem Railroad from East One hundred and Fifty-sixth street to the junction with the main line at East One hundred and Sixty-fifth street, temporary adjustment at Westchester Avenue, and carrying certain streets, avenues and roads, boulevards and parkways in the Twenty-third Ward over said railroad, showing the grades of the streets, avenues, boulevards and parkways for the crossing of said railroad, in pursuance of chapter 721 of the Laws of 1887. Dated New York, May 3, 1888." This map was certified and acknowledged by the president of the board of parks on the 13th of March, 1889, and was duly filed. The agreement provided: "That the grade of the said railroad at Westchester Avenue shall be altered so that the same shall be fifteen feet at said avenue, being the present grade of said avenue, said adjustment of grade being temporary only;" and the map shows that there was no change in the grade of the streets made thereby at Westchester and St. Ann's avenue.
By chapter 545 of the Laws of 1890 the office of commissioner of street improvements for the twenty-third and twenty-fourth wards was created. It was provided that he should have the exclusive power to locate and lay out, construct and maintain all streets, roads, avenues and public squares and places within the twenty-third and twenty-fourth wards of the city of New York; the exclusive right to construct and maintain all bridges, tunnels, sewers, streets, roads, avenues, public squares and places located and laid out therein, and except only as thereinafter provided should have the exclusive power to establish the width and grades of all such streets, roads, avenues and public squares and places so laid out, and should exclusively possess, exercise and be invested with all the powers, rights, duties and authority in relation to said streets, etc., which prior to the passage of the act, were conferred upon, possessed and exercised by the department of public parks, except that the several surveys, maps, plans and profiles of streets, roads, avenues, public squares and places within the said territory which have been made, laid out, filed or adopted by the department of public parks under any law authorizing the same, should not be changed, altered, amended or modified by the commissioner, unless by and with the concurrence of a majority of the board of street opening and improvement. The said commissioner was required within a time specified to complete the surveys, maps, plans and profiles of all the streets, roads, avenues, public squares and places located and laid out, or thereafter to be located and laid out in said territory, showing the location, width, grades and class of said streets, roads, avenues, public squares and places, and submit the same to the board of street opening and improvement for its concurrence and approval, and the act provided for the filing of the maps, plans and profiles, and that the said maps, plans and profiles when so filed should not be subject to any future change or modification, but should be final and conclusive as to the location, width, grades and class of the streets, roads, avenues, public square and places exhibited on such maps, plans and profiles.
This act, which created this new officer, conferred upon him extensive powers in the establishment of a definitive street system in the vast territory within the twenty-third and twenty-fourth wards which was in process of development from a country to a city community. It provided for a time limit for the establishment of this street system and when concurred in by the board of street opening and improvement, made the maps, plans and profiles adopted final and conclusive. This law had been for some years upon the statute books when chapter 537 of the Laws of 1893 and its amendatory act, chapter 567 of the Laws of 1894, providing for the change of grade damage commission was passed. The act of 1894 enumerated a number of acts affecting changes of grade, but this act of 1890 was carefully excluded from said enumeration. And not only that, but the proviso in chapter 567 of the Laws of 1894, that as to lands fronting on any street or avenue, except One Hundred and Fifty-seventh street, the benefits under this act should be limited to the area within which grades were changed, as shown on any map filed pursuant to chapter 721 of the Laws of 1887, shows how careful the Legislature was to exclude from the jurisdiction of the grade damage commission any consideration of the damages caused by changes of grade made by the commissioner of street improvements in the exercise of the powers conferred upon him, and the maps, plans and profiles filed by him with the concurrence of the board of street opening and improvement. The present grades of Westchester and St. Ann's avenues, of which the relator complains, were established and shown upon the map filed on the 21st of March, 1894, and certified by the commissioner of street improvements, approved by the board of street opening and improvement, and there is no other map on file establishing those grades; and that map, upon its face, states that it is prepared under authority of chapter 545 of the Laws of 1890, and it must have been so prepared and filed because it was that act which provided for this new officer, conferred upon him his powers and provided how he should exercise them with the concurrence of the board of street opening and improvement, and affixed the consequences thereto.
The relator claims that, because by the act creating him there were transferred to him the powers and jurisdiction of the commissioners of the park department formerly existing by authority of law, this map must be construed to have been filed under chapter 721 of the Laws of 1887. If that construction is sound, it would seem to follow that every alteration of the grade of a street heretofore or hereafter made in the twenty-third and twenty-fourth wards would authorize a claim for damages against the city and give the damage grade commissioners jurisdiction thereof, and the careful limitations of the act providing for said commission would be repealed sub silentio. Such contention cannot be sustained.
The relator claims further that because upon a large working drawing, from a part of which it is claimed the map filed by the park department on the 13th of March, 1889, was taken, there were shown the same grades as those now apparent on the map filed by the commissioner of street improvements, on the 21st of March, 1894, that these grades were established under a map filed under chapter 721 of the Laws of 1887. The answer is conclusive that the said working plan was never filed and that the plan which was filed did not show the present grades, but on the contrary showed that Westchester avenue and St. Ann's avenue were continued at the grade at which they then were.
We, therefore, reach the conclusion that the commissioners did not have jurisdiction of the claim filed by the relator and that the order dismissing said claim was right and should be affirmed, and the writ of certiorari dismissed, with fifty dollars costs and disbursements.
PATTERSON, P.J., INGRAHAM, HOUGHTON and SCOTT, JJ., concurred.
Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements. Settle order on notice.