The question here raised is the effect of a proceeding to acquire a title in fee of a street that over twenty years before had become a highway by dedication and acceptance. At the formal street opening and filing of maps in 1909, the boundaries were established and final grades regulated. But like many city streets, the grading as then actually worked did not extend to the full width of the street property lines,so that stoops and other encroachments remained undisturbed. In the proceedings to acquire the fee in the bed of the street, the owners of these encroachments have been awarded substantial damages for the cost of possible removal of these obstructions, and in such event a further amount for restoring access to the buildings. Yet the profiles with the encroachments shown were apparent upon the city maps showing final grades established in 1907 and 1909. And there is nothing to show that this physical condition, as it existed in 1907, is not to continue as heretofore. Although the claimants’ expert is uncertain and hesitating whether the ground of the awards sought is what had already been done, or is sought because of future injuries, it seems plain that if the city does not interfere with these stoops and projections, appellants can have no basis for damage awards.
In this commission, appointed only to acquire the fee in this street, resides no power to award damages for an executed and accepted change of grade made long before, after street openings and grades had been duly published, and no abutting *292owners had presented claims-. (Matter of Mayor [Perry Avenue], 118 App. Div. 874; Matter of Rogers Place, 65 id. 1; People ex rel. New York City Church v. Coler, 60 id. 77; Matter of Prospect Street, 77 Misc. Rep. 254; Matter of City of New York [Thirteenth Ave.], Id. 480.) The report fails to find, as required by section 980 of the- Greater New York charter, “ that any intended regulation will injure any building,” and also omits the essential conclusion under section 980, that any loss will accrue by and in consequence of such intended regulation to the respective owners.
The error of the commissioners was in treating this formal proceeding, to take title in fee to a street long opened and graded as similar to one to widen such street.
The reason and spirit of the charter provisions are that such assertions of damage shall be heard and passed upon in connection with the street opening, so' that any change of grade as shown by the final profile map may be estimated and assessed. Naturally such clainis should not first come forward after advance of property values. I find no basis to include in the ordinary municipal proceeding to acquire the fee, claims for removing encroachments in this street long opened and established, and included in the items allowed without the prerequisite findings of injury by any intended regulation of the avenue.
To sustain these appellants would, I think, enlarge and. rewrite a special statute, representing a policy wisely restricted in regard to the city of New York.- It would tend to open and despoil the city treasury, whenever the city should condemn the fee of an existing street — a result the more objectionable long after these minor modifications of grade had been accepted and acquiesced in as a welcome improvement. (Matter of Mayor [Vyse Street], 80 App. Div. 622.)
Hence I advise that the order appealed from be affirmed, with ten dollars costs and disbursements.
Blackmar, P. J., Rich and Kelly, JJ., concur; Jaycox, J., reads for modification;