(dissenting):
I am unable to concur with the views expressed by Mr. Justice ■ Ingraham in the opinion delivered by him in this case. It is conceded that by virtue of the provisions of section 874 of chapter 410 ■of the Laws of 1882 (known as. the Consolidation Act), and by the provisions of section 951 of chapter 466 of the Laws of 1901 (being the Greater New York charter as amended)," the relator is entitled to an award of damages if the building owned by him was erected in accordance with the grade of the street, as established on or .about the 21st day of February, 1871, if he sustained damages by reason of the change in grade of the Southern boulevard, made on •or about June 15, 1894. It is said, however, that neither in his notice of claim to the board of assessors, nor in the evidence pro•duced by him before the assessors, did the relator establish that the .house upon the property was built after the grade had been established in 1871; that the only proof upon such subject was that the relator acquired title to the property in 1892 and the building was then upon the property and that there was nothing to show that .such building was not erected before the original grade of the Southern boulevard was established, and that by reason thereof the .relator did not bring himself within the provisions of the statutes -above referred to. This claim wholly overlooks the statement of the petition wherein it appears that the “improvements were erected in conformity with the grade of the Southern Boulevard in front of said premises duly established by law on or about the 21st ■day of February, 1871. Thereafter and on or about June 15, 1894, the grade of the said Southern Boulevard from East 138th Street to Hunt’s Point Road was changed by the duly authorized public authorities of the City of New York, causing a change and elevation in the grade of said street of about 12 feet in front of your *430petitioner’s said .premises,-thereby causing serious and great loss and injury to your petitioner and damage to his said premises.” In the* return made to the writ this allegation is. not denied, nor otherwise* controverted; in consequence of which, such; fact is to be- taken, upon this áppeal as established. (People ex re). Village of Brookport v. Sutphin, 166 N. Y. 163.) Such also is the necessary effect: of the statement contained in the notice presented by the relator to-the board of assessors of the city of Hew York. Therein it is stated' r “ That the grade of said street was established by law on the twenty-first day of February, 1871. That the building erected on. said. ' premises was erected prior to the year 1892. That thereafter the* grade of the said street was changed on the fifteenth day of Juné^ 1894.” It is the necessary inference arising from this statement that the building was erected upon thé grade as established -in 1871. and this is confirmed by the fact that,-in. the return ,to the writ,, notice of the intended cháñge and regulation of the grade of the* street was hot given until on or about May 23, 1892, and as the* premises were erected'prior to that time the improvement mush have been made in conformity to. the established grade of the street-in 1871. It necessarily follows, therefore, that if the relator-suffered damage by reason tif this change of grade of the st-reét he* has brought himself squarely within the statutes heretofore cited and become entitled to compensation for damages sustained by the* change of grade, and it became the duty of the board of assessors to-make the relator an award therefor.
It is said,, however, that even though this be so, nevertheless the determination by the board of revision of. assessments is coriclusive upon the relator; that no appeal lies therefrom and that a writ, of certiorari is not authorized to review such action. A contrary doctrine was announced in People ex rel. Heiser v. Gilon (121 N. Y. 551) and in People ex rel. Village of Brockport v. Sutphin(supra) and People ex rel. Spencer v. New Rochelle (83 Hun, 185). This court has held that the subject-matter of a determination made by commissioners who were vested with authority, among-other things, to award damages for "a change of grade under a. similar statute was re viewable in this court, . (Matter of Mayor[Tiffany Street], 84 App.. Div. 525; Matter, of Rogers Place,. 65 id. 1.) Hothing contained in Heiser v. Mayor, etc., of N. Y. *431(104 N. Y. 68). militates against this view. That was an equitable action brought to vacate an award and assessment on the ground of alleged fraud, and it was held that the evidence was insufficient to establish fraud. In disposing of the question the court said: “ Even assuming that this conduct was fraudulently intended, it constituted an irregularity merely which was open to-review and correction upon certiorari and afforded no ground foian independent action to assail the award of - a judicial tribunal.”' The statute, the subject of construction in that case, and also in People ex rel. Heiser v. Gilon [supra), was chapter 729 of the Laws of 1872. Its provisions are quoted in the case last cited, and in all essential, aspects involved the exercise of the same powers, by the. board of assessors of the city of Hew York as were required to be exercised under the provisions of the statutes to which we have already called attention. The power to review such action, therefore, by certiorari would seem to be clearly established. (People ex rel. Tytler v. Green, 64 N. Y. 606.) By the provisions of section 2140 of the Code of Civil Procedure the questions to be determined upon a review by a writ of certiorari are stated, so far as important, here, to be the following: “ 4. Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination. 5. If there was such proof,, whether there was, upon all the evidence, such a preponderance .of proof against the existence of any of those facts that the verdict of' a jury affirming the existence thereof, rendered in an action in the;' .Supreme Court, triable by a jury, would be set aside by the court-,, as against the weight of evidence.” In the present case the facts, are undisputed. It appeared before the assessors that the building-when the change of grade was effected was' twelve feet below the-level of such grade. Prior to the change it had been rented in connection with a blacksmith shop, the rent received therefor being twenty dollars a month for some portion of the time and ten dollars per month for another portion; that after it was placed in the hole below the street the relator wás not able to rent it for any purpose or derive; any revenue therefrom. The photographs and the oral testimony clearly establish the situation. It is true that one of the members; of the board inspected the premises, but he did not dispute the facts.. His statement was that the building was in a dilapidated and decayed *432■condition; that the weather hoards were falling off and it would not hold together to permit raising, all of which was true enough, hut it unly bore upon the sum to be awarded. It did not justify arbitrary ■action upon the part of the board in denying all compensation for the damage suffered. The loss of rents was the direct result of the nhange of grade, and because it was small did not authorize the board of assessors to refuse .all compensation. ISTo one can read and ■examine the record without reaching the conclusion that the action -of the board was purely arbitrary, and for that reason it should not "be permitted to stand. It does not answer to say that no relief can be granted to the relator because the original board has been superseded by other members, and because the assessment for the local "improvement has been levied. Such facts furnish no answer to a -denial of any relief and the relator should not be deprived of his .rights, by arbitrary action. ’
It follows that the determinations of the board' of assessors and of "the board of revision of assessments should be vacated and set aside :and the relator be permitted to. present his claim to the existing board of assessors for determination.
Fifty dollars costs and disbursements "are awarded to the-relator,
O’Brien, J., concurred.
Writ dismissed and proceedings affirmed, with" fifty dollars, costs -and disbursements.