(dissenting):
The relator’s premises are on the southwest corner of One Hundred and Fifty-fifth street and Eighth avenue. Between July 14, 1890, and October 2, 1893, the city of New York constructed over portions of One Hundred and Fifty-fifth street and Eighth avenue a viaduct connecting St. Nicholas place with Macomb’s Dam bridge. St. Nicholas place is at the top of a bluff which rises several blocks west of the property in question and Macomb’s Dam bridge crosses the Harlem river several blocks east of the property. The viaduct in front of the property is from fifty to fifty-eight feet above the surface of One Hundred and Fifty-fifth street. The surfaces of One Hundred and Fifty-fifth street and of Eighth avenue in front of the premises have not been changed by the construction of the viaduct, and they remain as before, open to the public, except for the obstruction of the columns supporting the viaduct. The viaduct is used as a public street for foot passengers and vehicular traffic.
The fee to the land in the street and avenue was acquired by the city for street purposes, and they had been duly graded and paved prior to June 15, 1881, on which date by virtue of chapter 516 of the Laws of 1881 the city was authorized to construct the viaduct in question. This viaduct was under construction from 1890 to October 2,1893, when it was accepted as complete by the city. By the construction and maintenance of the viaduct the easements of light, air and access appurte*157nant to said premises have been diminished and the market value of the premises depreciated. On May 8,1894, by chapter 612 of the Laws of 1894, the board of estimate and apportionment was authorized in its discretion to examine the claim of relator’s intestate for damages and to make an appropriation therefor, to be paid by the comptroller. No action was taken under this statute by the board of estimate and apportionment. Thereafter Sauer, the relator’s intestate, brought a common-law action to recover against the city damages suffered to the property by reason of the erection of the viaduct. At Trial Term Sauer recovered a judgment for $30,000. This was reversed by this court for the improper reception of evidence. Sauer, without a retrial of the law action, sought then in equity to enjoin the use of the viaduct as wrongfully erected. At Special Term his complaint was dismissed. This court ■ upon appeal affirmed that judgment, holding that the damages to this land were damnum absque injuria. (Sauer v. City of New York, 90 App. Div. 36.) In the opinion it was stated: ‘c The surface of the street below as it existed prior to the construction of the viaduct has not been changed, and it remains open and unobstructed for public travel, except by these stairways and pillars. ” At the close of the opinion Mr. Justice Laughlin, writing for a unanimous court, said: “The plaintiff has no easement for light, air and access, as against the public, which will enable him to enjoin the making of any changes or alterations, in the street authorized by the Legislature to facilitate public travel. This being the character of the improvement made, the action cannot be maintained and the complaint was properly dismissed.” Upon appeal to the Court of Appeals the judgment was affirmed (180 N. Y. 27). The prevailing opinion in the Court of Appeals, written by Judge Haight, declares the right of the city to alter a street for the purpose of facilitating public travel without compensation to abutting owners. Judges Vann and Bartlett dissented, holding that the erection of this viaduct was not such a street use as was lawful without the making of compensation. An extract from the dissenting opinion of Judge Bartlett is significant, however, upon the question here raised. Judge Bartlett said: “In the case at bar there is no change of *158grade; it is stipulated in the case as follows: cThe grade and surfaces of 155th Street and 8th Avenue, in front of the plaintiff’s premises, as they existed on June 15th, 1887, have not been changed by the erection of the viaduct, and the said surfaces of said streets remain as before,. open to the public, except for the obstruction by the columns of the viaduct as before stated.’ It is thus apparent that the change-of-grade cases have no application.” Upon certiorari to the Supreme Court of the United States the determination of the Court of Appeals was confirmed (206 U. S. 536). The opinion of the Supreme Court of the United States in part reads: “ The State courts have uniformly held that the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, is. a legitimate street improvement equivalent to a change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled to damages for the impairment of access to his land and the lessening of the circulation of light and air over it.” This decision in the United States Supreme Court was handed down May 27, 1907.
By section 873 of chapter 410 of the Laws of 1882 there was imposed upon the board of assessors the duty to estimate the loss and damage sustained or to be sustained by each owner of land fronting on any street north of Sixty-second street (the grade of which was established after March 4, 1852) by reason of a change of grade of any such street in whole or in part, and to make a just and equitable award of the amount of • such loss or damage 'to such owner, both in respect of the land and in respect of the improvements thereon. It is under this statute that this relator, twenty-three years after the completion of this viaduct and ten years after the decision in the United States Supreme Court, during which nothing has been done, seeks to recover from the city for a change of grade of the street.
That this does not constitute a change of grade would seem to me to be a matter of first impression. The street in front of the relator’s premises has neither been raised nor lowered; it remains to-day as it existed prior to the construction of the viaduct, adapted for use and actually used for a public street. *159It is true that in People ex rel. City of New York v. Hennessy (157 App. Div. 786) the prevailing opinion states that in the equity case brought by relator’s intestate in this court, in the Court of Appeals and in the United States Supreme Court this change was held to be a change of grade. Also, in Smith v. Boston & Albany R. R. Co. (181 N. Y. 137) Judge O’Brien referred to the Sauer Case (180 N. Y. 27) and said: “It was held in that case that where the original street was elevated upon columns fifty feet above the original surface that it was a change in the grade of the streets within the meaning of the principle just referred to.” In neither of these cases, however, was the statement necessary to the decision, and an examination of the cases themselves discloses that neither in this court nor in the Court of Appeals nor in the United States Supreme Court was this construction stated to be a change of grade. In the United States Supreme Court it was significantly stated to be “equivalent to a change of grade” for the purposes of the legal question there discussed. In People ex rel. City of New York v. Hennessy (supra) it was held that under the special statute under which the construction was made damages were specifically allowed for injury to the abutter by reason of the impairment of light, air and access, and the opinion says: “ The scheme of the present act is quite different and plainly contemplates an award of damages, as for a change of grade, to the owners of lands abutting upon Third avenue.” In Smith v. Boston & Albany R. R. Co. the question at issue was the liability of towns for an actual change of grade of the street made necessary by the construction of an underpass under a railroad and the lowering of the surface of the street itself for that purpose.
In People ex rel. City of New York v. Lyon (114 App. Div. 583) the question arose upon certiorari to the hoard of assessors to review their determination refusing to allow the relator damages for a change of grade in the building of the approaches to the Third avenue bridge across the Harlem river. There, as here, the original grade of the street remained unchanged. The approach to the bridge, however, was constructed upon abutments, which abutments together with the stairways deprived the relator of light, air and access. *160It was there held that under that statute in awarding damages to private owners for lands condemned for the erection of the Third avenue bridge across the Harlem river in the city of New York the commissioners should award not only the value of the lands actually taken, but the consequential damage to the remainder of the lands not taken, caused by the shutting off of access thereto by the building of bridge approaches; and that when owners whose land is taken have proved before the commissioners the consequential damage to lands not taken, the presumption is that the award made by the commissioners included such consequential damage, and a subsequent additional award by the board of assessors made on the theory that the grade in front of the premises was changed by the building" of the bridge approaches is unauthorized. In the prevailing opinion it is said: “ The city has built upon its own land a structure designed for travel in the same manner as a street would be traveled it is true, but it has not in any legal sense changed the grade of One Hundred and Thirtieth street. That street remains at its original grade. If the approach be deemed a street its construction was the laying out of a new one, and no change of grade from that originally established has ever been made. Nor can the building of the approach be deemed a widening of One Hundred and Thirtieth streét at a different grade. It is a separate and distinct structure from the street itself. If the respondents have not received compensation for the erection of the approach and the destroying of access to their lands it is unfortunate, but we see no ground upon which the present award can be justified.” In People ex rel. City of New York v. Sandrock Realty Co. (149 App. Div. 651) the question arose upon the certiorari to review the proceedings of the board of assessors of the city of New York in awarding damages caused by a change of grade of Willis avenue in erecting a bridge across the Harlem river pursuant to the Laws of 1894, chapter 147, and Laws of 1897, chapter 664. By chapter 147 of the Laws of 1894 the Legislature authorized the commissioner of public works of the city of New York to construct a bridge with suitable approaches from a point at the intersection of One Hundred and Twenty-fifth street and First avenue northeasterly across the Harlem *161river to and along Willis avenue to One Hundred and Thirty-fourth street, and to make such changes in the grade lines of the streets or avenues approaching said bridge as might be necessary. Specific provisión was made in the act for the granting of compensation to abutting owners upon Willis avenue from the bridge up to One Hundred and Thirty-second street. The next intersecting street is the Southern boulevard, and the second intersecting street is One Hundred and Thirty-fourth street. The approach' to the bridge as finally completed in August, 1901, occupied seventy feet of the center of Willis avenue, which then was one hundred feet in width. For the purpose of widening Willis avenue between One Hundred and Thirty-fourth street and Southern boulevard, the city on May 22, 1897, took title to a strip thirty-five feet in width on each side, thus making on each side of the bridge approach a street fifty feet in width. The relators’ lots are upon the east side of Willis avenue between Southern boulevard and One Hundred and Thirty-fourth street. A strip thirty-five feet in width was taken from their lots, for which they were awarded the sum of $10,000 for the land taken. Confessedly no award had been made to these relators either for a change of grade or for impairment of light, air and access. Thereupon the abutters upon Willis avenue between One Hundred and Thirty-fourth street and the Southern boulevard from whose land a strip thirty-five feet wide had been taken, proceeded before the board of assessors to have estimated their damage for the destruction of light, air and access by reason of this erection in the center of Willis avenue. Mr. Justice Miller, in writing for the court, said: “It is plain-that, when the original act was passed, it was thought possible that a plan might be adopted which would necessitate a change of grade of the streets intersecting Willis avenue; and, with that possibility in mind, the Legislature provided for damages to property owners affected by such change of grade. While the construction of the viaduct or approach in the center of the street may be deemed a regulation thereof, it is plain that it was not the kind of change of grade that the Legislature provided for by section 8. The street in front of the claimant’s premises *162remains at the old grade. In the center of it, as widened, is a structure which interferes with the claimant’s easements of light, air and access. The Legislature did not provide for the case, and the court cannot supply that omission by adopting a construction which the statute was plainly not intended to bear. ”
The construction in front of the relator’s premises on Willis avenue was as much a change of grade as is the construction in the case at bar. It was held in that case that the relator had no remedy because its damages were not specifically provided for by the act authorizing the construction. That case was affirmed in the Court of Appeals in 207 New York, 771. So in the case at bar the construction of this viaduct was authorized by chapter 576 of the Laws of 1887 and no provision whatever was made in that act for damages to abutting property owners arising- from the deprivation of light, air and access. If this relator has her remedy under the Consolidation Act of 1882 cited, so had the relator in the Sandrock case, and the denial of any remedy to the relator in that case in the absence of specific provision therefor in the act authorizing • the construction is, to my mind, a controlling authority for the denial to the relator in the case at bar of any remedy in the absence of specific provision in the .act authorizing the construction of this viaduct.
Moreover, the enactment of chapter 512 of the Laws of 1894 is a legislative interpretation of the law of 1882 cited. The-Legislature would never have given to the board of estimate and apportionment the discretion to compensate the abutter if the abutter might collect his damages under the statute of 1882. Because he was remediless under existing law the act of 1894 was passed for his benefit and to that law alone must he now look for his remedy.
In my judgment the determination should be affirmed, and the writ dismissed, with costs.