Halpern v. Whittle , 293 N.Y.S. 418 ( 1937 )

Lazansky, P. J., and Taylor, J. (dissenting).

In 1925, when the building in question was constructed, the established grade of Flatbush avenue in front of the premises was that shown by the map filed by the local board of the town of Gravesend in 1894. Concededly, the construction was not in conformity with that grade. Therefore, the petitioner had no right to damages because of the subsequent change of grade by the city of New York. (Greater New York Charter, § 951.) The partial paving of Flat-bush avenue in 1910, consisting of the improvement of a strip 4,263 feet long and 20 feet wide, located in the center of the highway, which paving was in conformity with the natural grade, which was the grade of Flatbush avenue established in 1872-1873, and the cost of which improvement in 1910 was assessed against and paid by the abutting owners, was insufficient legally to show an abandonment by the city of the established grade of 1894 (People ex rel. Sciarillo v. Hennessy, 206 N. Y. 740, affg. 152 App. Div. 944, affg. 2 Bradbury’s Plead. & Prac. Rep. 63, opinion of Gerard, J., at Special Term; Effinger v. Hennessy, N. Y. L. J. June 8, 1912, p. 1285, opinion of Crane, J., at Special Term), which still obtained as the established grade in 1925. Nor did such partial pavement and the assessment therefor constitute the lawful establishment of a grade by the city of New York in 1910. The city is not estopped from asserting that the grade established in 1894 was in force at the time of the construction in 1925.

Determination of the board of assessors of the city of New York and the determination of the board of revision of assessments confirming such determination annulled, with fifty dollars costs and disbursements, certiorari proceeding sustained, and the matter remitted to the boards to proceed in respect to damages or otherwise as the parties may be advised.