Willis avenue was a public highway of the city of Mew York. The Legislature, by section 1 of chapter 147 of the Laws of 1894, authorized the construction of a bridge over the Harlem river to connect said avenue, and a change of grade of the avenue to form an approach to the bridge at the proper elevation. In order to afford sufficient street facilities on the incline formed by the approach, and to afford access to the property abutting on the street at the sides of the approach but on a lower level, the Legislature by the same act authorized the condemnation of lands, and pursuant to such authority a strip of land thirty-five feet in width was taken on either side of the avenue, in the block between Southern boulevard and One Hundred and Thirty-fourth street, for the purpose of widening the avenue. The incline forming the approach to the bridge commenced near One Hundred and Thirty-fourth street, and from that point toward Southern boulevard and the Harlem river the grade of seventy feet of Willis avenue, which was one hundred feet in width, was changed, forming a permanent obstruction directly in front of the property of the respondent company, leaving, however, the strip of thirty-five feet so taken and fifteen feet of the original avenue, making fifty feet of street in all between the remaining lands of the respondent company and the exterior lines of the incline forming the approach to the bridge. It is thus seen that the incline forming the approach to the bridge was constructed wholly within the exterior lines of Willis avenue as it formerly existed, and that no part of it was nearer than fifteen feet to the lands so condemned to widen the avenue. It is perfectly plain, I think, that the condemnation commissioners were not authorized to make, and did not attempt to make, an award for damages to the lands of the respondent company caused by the construction of the approach to the bridge, which, *658as has been seen, opposite the lands of the said respondent company constituted a change of grade of the central part of the avenue. The record shows that the condemnation commissioners followed the general rule, and determined the value of the parcel as a whole before the taking and the value of the parcel remaining after the taking in view of the use to which the lands taken were to be appropriated. The lands thus taken were to be appropriated and used for street purposes only; and no part of the approach or viaduct was to be erected thereon, and there was to be no change of grade of the lands thus taken. In these circumstances it is quite clear, I think, that the owners of land, part of which was thus taken in the block between Southern boulevard and One Hundred and Thirty fourth street, whose remaining lands abutted on the street, were entitled to an award by the board of assessors of any damages caused by such change of grade in front of their property, for by the express provisions of section 3 of the act, the board of assessors were commanded to estimate and award damages to each owner of land fronting on the street caused by the change of grade. The fact that the Legislature by section 4 of the act erroneously assumed that, by the change of grade where there was to be a high steel viaduct between One Hundred and Thirty-second street and the Harlem river, the easements of abutting property owners would there be taken for which they would be entitled to damages to be determined by a constitutional condemnation commission, and by chapter 664 of the Laws of 1897 (amdg. § 4) extended that theory to the block between One Hundred and Thirty-second street and One Hundred and Thirty-third street, but not to the block in question, does not aid the relator, for if the erection of the viaduct between One Hundred and Thirty-second street and the Harlem river constituted a taking of easements, as the Legislature plainly supposed, it would not have been competent for the Legislature to confer authority on the board of assessors to estimate the damages, which, doubtless, accounts for those damages having been sent to a constitutional condemnation commission. The Legislature had fully conferred authority on the board of assessors to ascertain and award damages for a change of grade, and that authority remained appli*659cable to lands in the block between Southern boulevard and One Hundred and Thirty-fourth street, where the Legislature evidently considered that since the incline started just above that block it there only constituted a change. A change of grade for a street use, however, does not constitute a taking of private easements for which compensation must be made. (Sauer v. New York, 206 U. S. 536; 180 N. Y. 27; 90 App. Div. 36.) The Legislature, therefore, was under no obligation in the case at bar either to provide for an award of damages for interference with easements or for the change of grade, either by the condemnation commissioners or the board of assessors; but it evidently intended to provide for both, and it was competent for it to do so. I find nothing in the amendments to the act indicating that the Legislature intended to repeal the authority of the board of assessors to award damages for the change of grade, which, I think, was originally clearly conferred with respect to Willis avenue by section 3 of the act. By the original act the authority to award such damages was, upon an erroneous theory, as already stated, conferred upon the condemnation commissioners with respect to lands abutting on the avenue between the Harlem river and One Hundred and Thirty-second street, and such authority was later extended to the next block to the north (Laws of 1897, chap. 664, amdg. § 4), but the authority conferred upon the board of assessors by section 3 of the original act with respect to damages for changes of grade in other blocks was not only never repealed, but it was re-enacted by chapter 607 of the Laws of 1901 (amdg. § 3). I am of opinion, therefore, that the board of assessors were authorized to award damages for the change of grade of Willis avenue caused by the incline forming the approach to this bridge, and I vote to affirm the proceeding and to dismiss the writ.
Writ sustained and proceedings before the board of assessors dismissed. Order to be settled on notice.