THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE CITY OF NEW YORK, Relator,
SANDROCK REALTY COMPANY and ROBERT MUH and Others, Composing the Board of Assessors of the City of New York, Respondents.
CERTIORARI issued out of the Supreme Court and attested on the 2d day of June, 1905, directed to Robert Muh and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the
clerk of the county of New York all and singular their proceedings had in relation to the claim of the Sandrock Realty Company for damages caused by the change of grade in a city street.
Clarence L. Barber, for the relator.
Morgan J. O'Brien of counsel [A. C. & F. W. Hottenroth, attorneys], for the respondents.
This case is before us on a writ of certiorari to review the proceedings of the board of assessors in which an award was made to the respondent, the Sandrock Realty Company, for damages caused by change of grade of Willis avenue as originally laid out. By chapter 147 of the Laws of 1894 the Legislature authorized the commissioner of public works of the city of New York to construct a bridge with suitable approaches from a point at the intersection of One Hundred and Twenty-fifth street and First avenue northeasterly across the Harlem river to and along Willis avenue to One Hundred and Thirty-fourth street, and to make such changes in the grade lines of the streets or avenues approaching said bridge as might be necessary. We are concerned with the construction of sections 3 and 4 of that act, which are as follows:
'§ 3. The expense of making all necessary surveys, preparing the plans and specifications, and of constructing the said bridge and approaches thereto, with the necessary abutments and arches as aforesaid, shall not exceed two million dollars, and such further sum for paying awards for damages caused by reason of the change of grade of streets or avenues approaching the same authorized by this act, as may be awarded by the board of assessors of the said city, whose duty it shall be to estimate the damage which each owner of land fronting on such street or avenue will sustain by reason of such change to such land, or to any improvements thereon, and make a just and equitable award to the amount of such damage to the owner or owners of such lands or tenements fronting on such street or avenue, and opposite thereto, and affected by such change of grade. The comptroller of said city shall, from time to time, when
directed by the board of estimate and apportionment, prepare and issue bonds of said city, bearing interest at not more than four per centum per annum, and redeemable from time to time, but not less than twenty years after the date thereof, for the purpose of defraying the expense of making all necessary surveys, preparing plans and specifications and of constructing the said bridge and approaches thereto, with the necessary abutments and arches as aforesaid, and for paying the awards which may be made for damages by reason of any change of grade as aforesaid. Such bonds shall not be sold for less than the par value thereof, and the moneys received from the sale of the said bonds shall be deposited in the treasury of the said city, and shall be drawn and paid by the comptroller of the said city for the several objects and purposes provided in this act, upon vouchers in a form to be prescribed by the said comptroller.
'§ 4. With the consent and approval of the board of estimate and apportionment first had and obtained the commissioner of public works, for and in behalf of the mayor, aldermen and commonalty of the city of New York, is thereby authorized to acquire title in fee to any land which he may deem necessary for the purpose of the construction of the said bridge and approaches, with the necessary abutments or arches as aforesaid, and to acquire any right or easement which it may be necessary to take for the purpose of constructing that portion of the approach to said bridge between Harlem river and One Hundred and Thirty-second street, which said portion of said approach shall be a viaduct built of steel or iron, and to that end the said commissioner may make application to the Supreme Court in the first judicial district for the appointment of commissioners of estimate, specifying in such application the lands sought to be acquired for the purpose aforesaid. The provisions of law relating to the taking of private property for public streets or places in the said city are hereby made applicable as far as may be necessary to the acquiring of the said land as aforesaid. The amount or amounts awarded for the said land and the expense of the proceedings hereby authorized for the acquiring of the same shall form part of and be included within the expense of constructing the said bridge
and approaches thereto, with the necessary abutments and arches authorized by the third section of this act.'
Willis avenue, as originally laid out, was one hundred feet in width. Proceeding north from the river, it is intersected by One Hundred and Thirty-second street, Southern boulevard or One Hundred and Thirty-third street and One Hundred and Thirty-fourth street in the order named. The approach to the bridge as it was finally completed in August, 1901, occupies seventy feet of the center of Willis avenue. For the purpose of widening Willis avenue between One Hundred and Thirty-fourth street and Southern boulevard, the city, on May 22, 1897, took title to a strip thirty-five feet in width on each side, thus making on each side of the bridge approach a street fifty feet in width. This and three other cases, argued with it ( People ex rel. City of New York v. Goossen,149 A.D. 660; People ex rel. City of New York v. Bronx Bath Co., Id. 661; People ex rel. City of New York v. Olssen, Id. 662), involve lots on the east side of Willis avenue between Southern boulevard and One Hundred and Thirty-fourth street from which said thirty-five-foot strip was taken. An award of $18,780 was made to the owner of the lots at the time of the taking for the land taken. In their report the commissioners of estimate said: 'In making the final awards, the Commissioners assumed that the fee to the lands taken vests absolutely in the City, subject only to the public use of a strip fifty feet wide on either side of the approach as a public street forever.' It thus appears that the theory upon which the award was made accorded with the actual fact, i. e., that the land was taken to widen the street and was not to be used for the construction of the bridge approach. Treated strictly as a condemnation proceeding to determine the damages for land taken for public use, the claimant was not ...