The Greater New York Charter contains a provision (§ 951; and see Administrative Code, § 307a-3.0) which denies the City's liability for a change in the established grade of a street — "except as herein provided". That exception refers to the following provision, one phrase of which is important to the controversy now before us: "§ 951. An abutting owner who has built upon or otherwise improved his property in conformity with the grade of any street or avenue established by lawfulauthority, and such grade is changed after such buildings or improvement have been erected * * * shall be entitled to damages for such change of grade. * * *." (Emphasis supplied.)
The claimant Lawrence Construction Corporation owned unimproved land abutting upon 80th Street in Glendale, Long Island. In August, 1935, it retained a surveyor to "stake out" five lots upon each of which it contemplated erecting a house. In *Page 645 executing that commission the surveyor inquired at the Topograhical Bureau of the Borough of Queens for data which would give the "grade detail" of 80th Street. The surveyor then learned and promptly reported to the corporate claimant's architect "that a grade crossing elimination was to take place at 80th Street on the Long Island Railroad and that * * * the grade crossing might be built within a year." Thereafter the surveyor delivered to the claimant a blue print survey upon which appeared the legend — "Note: This property begins about 130 feet south of the Long Island Railroad. A grade crossing elimination project may cause destructive changes in grade. Please investigate at the office of the Transit Commission before beginning the erection of houses." There is a finding by the Court of Claims, affirmed by the Appellate Division, — "That at the request of the corporation [claimant] dated September 4, 1935, Savacool [the surveyor] removed the said note from the survey on September 7, 1935. That the corporation made this request because it believed that temporary building money could not be borrowed if the lender saw the note." There is also evidence, incorporated in the finding, that the claimant corporation received on August 30, 1935, from the Topographical Bureau of the Borough of Queens a letter in which was the statement — "The elimination of the grade crossing at 80th Street on the Montauk Division of the Long Island Railroad has been ordered by the Transit Commission and plans have been prepared for this work by the engineers of the Railroad. It would be to your advantage to inspect those plans at the office of Mr. Selmer of the Transit Commission, 270 Madison Avenue, Manhattan, before starting to build, as radical changes in the street grades, etc. are contemplated." Despite information thus received by the corporate claimant it proceeded thereafter in 1935 to erect five houses at the then existing physical grade of 80th Street without regard for the change of that grade as to which it had been forewarned.
The project to separate the existing physical grade of 80th Street and the grade of the intersecting tracks of Long Island Railroad commenced March 10, 1936 — fifteen days after the claimants Kammerling had acquired from the corporate claimant one of the properties here involved. Upon the completion of the elimination project which brought about a radical change *Page 646 in the grade of 80th Street in front of the claimant's properties, the present claims against the State were filed for alleged damages thereby sustained. Each claim is predicated upon section 951 of the Greater New York Charter which, as we have seen, permits the recovery of damages by an abutting owner for a change of street grade only in the event he has improved his property in conformity with a grade "established by lawfulauthority" and such grade is changed after such improvements. Liability in the first instance for property damage thus incurred is imposed by statute upon the State. (L. 1928, ch. 677, § 7.)
Accordingly, our inquiry goes to the question — what was the lawfully established grade of 80th Street in 1935 when the buildings upon claimants' properties were erected? The judgments awarded to the claimants by the Court of Claims and affirmed by the Appellate Division rest upon the ruling that no new street grade was established by lawful authority to supersede the physical grade of 80th Street with which the corporate claimant had conformed its building operations in 1935. Resisting the judgments herein the State's submission is that at the time the claimants' properties were improved in 1935 they were not conformed to a new grade which previously had been legally established by action of the Transit Commission.
As we consider the legal effectiveness of action taken by the Transit Commission, we look first to the scope of the Commission's authority. The Legislature has denominated chapter 677 of the Laws of 1928 as the "New York city grade crossing elimination act." (§ 1.) The title to that act makes clear a legislative intent thereby "to provide for the elimination of existing highway-railroad crossings at grade within the jurisdiction of the transit commission and to repeal inconsistent acts * * * and superseding certain provisions of the Greater New York Charter." The statute itself (§ 15) provides that — "Insofar as any provision of this act is in conflict with any provision of the Greater New York Charter, such provision of this act shall prevail." That the Legislature intended to give to the Transit Commission exclusive jurisdiction within the defined field is made clear by subdivision 1 of section 2 which provides: "Notwithstanding any inconsistent provisions of article three of the railroad law or of any other law, general *Page 647 or special, all existing highway-railroad crossings at grade within the jurisdiction of the transit commission shall be eliminated in the manner prescribed by this act". With greater particularity subdivision 5 of section 2 of the Act empowers the Commission by its order and after a hearing "upon such notice as the commission shall deem reasonable," to designate the crossings to be eliminated and by such order to determine "the manner in which such elimination shall be made including a determination as to the alteration to be made in such crossing, its approaches, the method of crossing, the character of the structure andapproaches, * * *." (Italics supplied.) Other provisions of the statute relating to what is there designated as an "enlarged plan" (§ 5, subds. 5, 6) are not here involved.
There is undisputed evidence that prior to its approval of the project to eliminate the railroad grade crossing on 80th Street the Transit Commission, acting within its statutory powers and on due notice, held public hearings at which "various people in the locality, the railroad and the city of New York and the various engineers" attended and offered testimony bearing upon "the best manner and way of carrying out this elimination." Thereafter, on March 13, 1930, the Transit Commission by "Final Order and Determination" directed the elimination of the Long Island Railroad grade crossing at 80th Street in the manner set forth on a general plan which showed the old grades at 80th Street and the new grades of that street adopted by the Commission as a part of the elimination. Copies of the order of March 13, 1930, with the general plan for the elimination were served on the Board of Estimate of the City of New York and on the President of the Borough of Queens and the elimination was carried out in 1936 in accord with that plan. A certified copy of the elimination plan which, with other data, defined a change in the grade of 80th Street, was filed in the Topographical Bureau of Queens and, concededly, came to the knowldge of the owner of the subject premises in 1935 prior to the improvements made thereon.
It is also noteworthy that as a matter of practical construction the action taken by the Transit Commission by its order of March 13, 1930, was treated as having established a new *Page 648 grade of 80th Street. There was undisputed evidence to that effect by the Commission's engineer in charge of grade crossing elimination. There was also received in evidence as a part of the claimants' proof a map adopted October 31, 1940, by the Board of Estimate of the City of New York which bears the title "Map No. 2734 showing a change in street grades heretofore established on 80th Street from Furmanville Avenue to 78th Avenue in the second ward." (Italics new.) The map — which shows the street grade of 80th Street as established by the Transit Commission order of March 13, 1930 — bears the following legend: "The grades shown hereon within the area affected by the grade crossing elimination are existing grades established pursuant to an orderand determination of the Transit Commission and the adoption of this map serves to incorporate such existing grades upon the city map." (Italics supplied.)
These considerations have led me to conclude that a new grade of 80th Street, as fixed by the Transit Commission's order of March 13, 1930, was "established by lawful authority," within the provisions of section 951 of the Greater New York Charterbefore improvements were made upon the claimants' premises. (See People ex rel. Weiser v. Tucker, 175 App. Div. 976, affd. 220 N.Y. 594; People ex rel. Architects' Offices, Inc., v. Ormond, 201 App. Div. 787, 792, affd. 234 N.Y. 549; Mirro v. State of New York, 260 App. Div. 525, 526, affd. 285 N.Y. 678. ) It follows that the State is absolved from liability under section 951 of the Greater New York Charter and Laws of 1928, chapter 677, section 7.
Accordingly, I dissent and vote to reverse the judgments and to dismiss the claims, with costs.
LOUGHRAN, RIPPEY, CONWAY, DESMOND and THACHER, JJ., concur with LEHMAN, Ch. J.; LEWIS, J., dissents in opinion.
Judgment affirmed. *Page 649