PEOPLE EX REL. JANES
STILLINGS ET AL.
Certiorari by the People of the State of New York, on the relation of Henry E. Janes, as administrator de bonis non of Edward R. Janes, deceased, against William E. Stillings, chairman, and another, surviving commissioners, to review proceedings of the commissioners dismissing a claim for damages. Affirmed, and writ dismissed.
Barclay E. McCarty (Jared G. Baldwin, Jr., and John M. Harrington, on the brief), for relator.
Theodore Connoly (Francis K. Pendleton, Corp. Counsel, Terence Farley, and Stephen O'Brien, on the brief), for respondents.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
The relator owns property lying between St. Ann's avenue, Westchester avenue, Brooke avenue, and East 149th 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 & Harlem Railroad passes under St. Ann's and Westchester avenues at this point. The sole question involved is [116 N.Y.S. 139] 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 A.D. 195, 108 N.Y.Supp. 903, and confine our examination to the precise point involved. By chapter 567, p. 1307, of the Laws of 1894, chapter 537, p. 1156, 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 157th street, formerly Prospect street, or in any other street or avenue in the Twenty-Third or Twenty-Fourth wards in the city of New York, which lands, tenements or hereditaments have sustained damages or will sustain damages, by reason of the change of grade of any street or avenue, which change was made in conformity with the provisions of chapter 841 of the Laws of 1868, chapters 329 and 604 of the Laws of 1874, chapter 436 of the Laws of 1876, chapter 721 of the Laws of 1887, or chapter 329 of the Laws of 1892, *** 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 and buildings fronting on any street or avenue except fronting on 157th street, the benefits of this act shall be limited to the area within which grades are changed as shown on any map filed pursuant to chapter 721, p. 937, of the Laws of 1887."
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, p. 937, 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 & Harlem Railroad Company upon plans for the depression of the tracks and changing the grades of the railroads of the New York & Harlem Company, and carrying any streets in the Twenty-Third and Twenty-Fourth wards across and over, or under, said railroads, which plans when so agreed upon should be executed and carried out forwith 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, amendments, and revision.
On the 9th of July, 1889, the park department and the New York & 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 & Harlem Railroad, between East 156th street and the main line of said railroad at East 165th 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 156th street to the junction with the main line at East 165th 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, parkways for the crossing of said railroad, in pursuance of chapter 721 of the Laws of 1887. Dated New York, May 3, 1888."
[116 N.Y.S. 140] 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 said railroad at Westchester avenue shall be altered so that the same shall be fifteen feet at said avenue, being the present grade at said avenue, said adjustment of the 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 avenues.
By chapter 545, p. 965, 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 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, and filed by the department of parks by any law authorizing the same, should not be altered, amended, or modified by the commissioner, except by and with the concurrence of a majority of the board of street opening and improvements. 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 hereafter to be located and laid out, in said territory, showing the location, width, grades, and classes of said streets, roads, avenues, public squares, ...