Opinion
October 26, 1917.
Hartley G. Pelletier, for the appellants.
Charles J. Nehrbas, for the respondents.
The relators seek a writ of mandamus to compel the board of assessors of the city of New York to hear, consider and determine said petitioners' claim for damages to their property resulting from the change of grade of Riverside Drive.
The relators' claim to be entitled to damages is based upon section 951 of the Greater New York charter (Laws of 1901, chap. 466), as amended by Laws of 1916, chapter 516. As so amended the section, in so far as applicable, reads as follows: "After the taking effect of this act an abutting owner who has built upon or otherwise improved his property in conformity with the grade established by lawful authority, and such grade is changed after such buildings or improvement have been erected, and the lessee thereof, shall be entitled to damages for such change of grade. * * *. Damages to such buildings and improvements shall be ascertained and assessed by the board of assessors in the manner hereinafter provided."
The grading of which relators complain was completed and the work accepted by the city authorities on July 10, 1916.
The section above quoted also provides as follows: "No award shall be made, in any case arising after the takgin effect of this act, unless a claim in writing therefor shall have been filed with the board of assessors within ninety days after the grading shall have been completed and accepted by the city authorities in charge of the work."
The relators' claim was not filed with the board of assessors until January 15, 1917, much more than ninety days after the grading had been completed and accepted. Therefore, by the express terms of the very section upon which the relators rely their claim is barred, and the board of assessors have no power to make the award.
If it be said that the limitation is unreasonable, the answer is that there is no inherent right to damages for a change of grade. A claim for such damages only arises when and as the Legislature sees fit to give it, and having power to give or to withhold, the Legislature has power to prescribe upon what terms damages may be granted.
The order should be affirmed, with ten dollars costs and disbursements.
CLARKE, P.J., DOWLING, SMITH and PAGE, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.