Opinion
November 12, 1909.
Stephen O'Brien, for the relator.
George F. Stiebeling, for the defendants.
This is a proceeding by certiorari to review the action of the commissioners appointed pursuant to chapter 537 of the Laws of 1893, and the laws amendatory thereof, known as change of grade damage commissioners. The particular action sought to be reviewed is the award to the respondent Walter W. Tinsley of substantial damages for the injury caused to a certain parcel of land owned by him in consequence of the change of grade of Rider avenue. Tinsley became the owner of the property in 1893, the change of grade for which the award has been made having been effected in 1889. He, therefore, acquired the property in its damaged condition.
The authority for making the award is found in chapter 747 of the Laws of 1905, which reads in part as follows: "The owner of the property affected, at the date of the enactment of chapter five hundred and thirty-seven of the laws of eighteen hundred and ninety-three, as amended by chapter five hundred and sixty-seven of the laws of eighteen hundred and ninety-four, being the ninth day of May, eighteen hundred and ninety-four, shall be entitled to the award of said commissioners, if any such be made." This act, by its letter, would justify an award to Tinsley, but the relator contends that in so far as it purports to allow an award of damages to one who became an owner of the property after the damage had been done, it is unconstitutional, in that it undertakes to make a gift or give a gratuity out of the funds of the city. If real property be damaged by the change of grade of an adjoining highway it is manifest that the person who suffers the damage is the one who owns the property at the time the grade is changed, and if compensation is to be paid therefor it is he who should be compensated. This principle has frequently been applied where property has been injured by some public improvement. ( Johnson v. Pettit, 120 App. Div. 774; King v. Mayor, etc., of N.Y., 102 N.Y. 171; Holloway v. Southmayd, 139 id. 409.) Damages for a change of grade are purely statutory and are supported by the consideration that there is a moral obligation on the part of a municipal corporation that has changed the grade of a highway to pay the damage caused thereby to abutting owners, but as this court has already said: "There certainly was no such moral obligation to pay to persons who had acquired title to the property after the change of grade and after the damage had been sustained as would justify the municipal corporation in appropriating money raised by taxation to pay a sum of money for the damage that the property had sustained before they had acquired title." ( People ex rel. Stephens v. Phillips, 88 App. Div. 560, 564.) Matter of Borup ( 182 N.Y. 222) is not to the contrary. In that case the act allowing compensation was passed after the damage had been done, but the parties to be compensated were those who owned the property when the damage was inflicted upon it. Whatever damage was done to the property in question here was done when the grade was changed. The respondent Tinsley acquired it afterwards and the act in so far as it undertakes to provide for an award to him for an injury which he did not suffer is clearly unconstitutional.
The writ must, therefore, be sustained and the determination of the commissioners set aside.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and HOUGHTON, JJ., concurred.
Writ sustained and determination of commissioners set aside. Settle order on notice.