The relator was, and at the time of the presentation of her petition had been for ten .years, the owner of property situate and fronting on the north side of One Hundred and Thirty-eighth street, in this city. There were erected upon it a dwelling-house, outhouses,and fences. For many years prior to 1867 the street named had been used as a public street or road, and thereafter, up to the year 1871, was traveled upon as a road or street, and was the only means of access to said houses and lots. The commissioners of Central park, under and by virtue of chapter 697 of the Laws of 1867, and in the year 1868, changed the grade of the street, and, in 1869, began to conform it to such change, and, in 1872, proceeded to finish it, and to curb and gutter the street upon the new or changed grade. The relator, having suffered damages in consequence of these proceedings, asked the board of assessors to ascertain and award her the damages to which she had been subjected, and they refused to do it. The refusal seems to rest on the proposition that the grade of One Hundred and Thirty-eighth street had not been fixed or established by any law or ordinance of the common council of the city of New York. This is inferred from the affidavit read on behalf of the city on the motion which the relator made for a mandamus, and which was denied. The act of 1867, swpra, authorized the commissioners, among other things, to alter and amend the present grade of any street, avenue or road, that might be retained by them, and to establish new grades for all other streets within a certain boundary which includes the plaintiff’s property. The present means the existing grade of any road or street' used as such. It may be that the grade of One Hundred and Thirty-eighth street was not formally established by any law or ordinance of the common council relating to that subject, or having that object expressly in view, but the street or road had been used, and had been recognized as an existing street or road by the legislature. The act of 1864 (chap. 405, § 1, Laws 1864, 940), contains an appropriation to repair it, and in these words: u Eoads and avenues as follows: The sum of $4,000 for One Hundred and Thirty-eighth street.” It could not be used as a street or road without a grade, and the act of 1867, by the power it confers, contemplates a change, not only *464from, grades established by law or ordinance, but those 'existing and at present adopted by general use. The language employed is not to alter and amend the established grade or one made in accordance with any law or ordinance expressly relating thereto, but the present grade ; that is, the grade of the street or road as existing and used. Indeed the use óf the word “ road,” shows that it was not the intention of the legislature to confine the award to owners whose property fronted on streets, the grades of which had been established by ordinance. The grades of roads on this island have not been established by ordinance of the common council. The act of 1852 (chap. 52),.which relates to the change of established grades, provides for them expressly. Section 1 declares that the grades of the streets and avenues of the city, as now fixed and established by the common council, shall not be changed or altered, except, etc. The act of 1867 authorizes the commissioners of Central park to alter and amend the present grade of any street, avenue, road, etc.; and, by section 3, declares that all damage to any land, or to any building or other structure thereon, existing at the time of the passage of the act on any street, avenue or road, laid out on the map of the city of Eew York within the district specified, shall be ascertained, etc.' The difference between established and existing grades would seem, by comparison of these statutes, to hav'e been in view when the act of 1867 was passed, and hence the use only of the language “ present grade of any street, avenue' or road,” which means either by law duly established, or existing and in use by the public. To construe it otherwise would do injustice. It would deprive owners, as in this case, of all indemnity, who, accepting the existing and established grade established by general use and recognition, built in conformity to it, taking only by the proceeding,, properly regarded, the risk of such changes as might be made at some subsequent time. For these reasons the answer made as suggested was not sufficient. It is not denied that the street or road was used as such, and duly recognized as one existing, but 'only that the grade had not been fixed or established by law or ordinance. It is not true that the grade is not fixed or established by law. It may be, by the general use of the public as it exists, become a grade established by law. ■ The evidence shows that to have been so in regard to One *465Hundred and Thirty-eighth street, and the recognition of it as a street or road by the 'legislature (supra), confirms the general use and the then “ present” existing grade. The result of these views is, that the relator’s application to have her damages ascertained and awarded should have been granted, and that the motion for a mandamus should, therefore, also have been granted. The order made at Special Term should be reversed.
Daniels, J., concurred.