For the reasons stated in the opinion of Mr. Justice Lawrence at Special Term,* I dissent.
Order reversed, with costs and disbursements, and writ quashed, with fifty dollars costs.
The following is the opinion of Lawrence, J., at Special Term:
Lawrence, J.:
The relator’s counsel is right in contending that sections 873 to 876 of the Consolidation Act (Laws of 1883, chap. 410) do not affect the question involved in this case, inasmuch as they relate to changes in the grades of streets after the streets have been actually laid out and the grades fixed and determined. I am' also of the opinion that, under section 993 of the Consolidation Act, as amended by chapter 449 of the Laws of 1895, the relator is entitled to interest upon the sum awarded to him from the date when the title vested in the mayor, aldermen and commonalty of the city of Hew York. That section provides as follows: “All damages awarded by the commissioners of estimate and assessments, with interest thereon from the date when title to the lands shall have vested in the mayor, aldermen and commonalty of the city of Hew York, as provided- in this chapter, and all costs or expenses which may he taxed shall he paid by the mayor, aldermen and commonalty of the city of HeW York to the respective persons and bodies politic or corporate mentioned or referred 'to in said report, or in whose favor such costs or expenses shall be taxed.” In this case the title to the land required for the opening of Marion avenue was vested in the city of Hew York by the resolution of the board of street opening and improvement on the 38th day of April, 1896. In their final report, which was confirmed on the 3d day of March, 1900, the award to the relator was stated as follows: “For Damage Map Humbers 36A,' 37A, and 38A, §1,000, subject to a mortgage to secure §13,700, held by Wesleyan University of Middletown, Connecticut, for damage to buildings by *81reason of the intended regulation of the street, meaning the said Marion avenue.” .It is conceded that the mortgage mentioned in this award has been since paid off, and that it is no longer a lien upon the relator’s property. It seems quite obvious from the language of the award that it referred to all the damage which would result to the building of the relator from the opening of the avenue, and that •damage was, by force of the statute, necessarily determined as of the date when, under the resolution of the board of street openings, the title passed to the ■city. See Consol. Act, § 956, as amd. by Laws of 1895, chap. 449.)
The provisions of the Consolidation Act in relation to damages by reason of a change of grade are contained in section 978 of that act, and they are continued by section 980 of the charter of Greater Hew York. (See Laws of. 1897, chap. 378; Laws of 1882, chap. 410.) Each of those sections relates to damages from -an “intended regulation” of a street, or portion of a street, in consequence of the opening, extending, enlarging, straightening, altering or improving thereof, and requires the commissioners of estimate and assessment “ to make * * * a- just and equitable estimate and assessment of the loss and damage which will accrue by and in consequence of such intended regulation.” By the statute, as already stated, interest is payable upon awards from the date of the passing of the title, and no distinction is made between that portion of an award which is for land actually taken and that which is paid for injury to a building. As the date when the award became payable is fixed by the resolution and the statute, I think that the relator is entitled to the mandamus for which it asks, and to the costs of this proceeding. Draw order accordingly and settle on -one day’s notice.