By the Court, Mitchell J.
On the 4th of June, 1851, & resolution of the corporation of ISTew-York was approved by the mayor, which directed that Wall-street, on the northerly side, [637]*637between. Broadway and Nassau street, be widened four feet, except that until June 1,1860, the building or any part of it on the corner of Wall and Nassau streets, on the north side of Wall-street'should not be required by the corporation tobe taken down, but that the same should remain until that date as it was at the date of the resolution. In July of the same year a petition was presented, under the corporate seal of the city, to the supreme court at special term, for the appointment of commissioners of estimate and assessment. At that time it was agreed that the exception in the resolution was void, and that opinion, was expressed by the judge then presiding. No.order on that subject was entered; but probably to conform to that opinion the petition as now on file, and the order entered thereon; omit the exception entirely. The order was entered July 28,1851, though dated on the 5th of that month. The commissioners made the necessary affidavits and took the oath of office on the 29th of July and 1st of August, 1851. The map showing the property to be taken was not completed until September 17, z 1851, and the map of property benefited not until the 27th of October, following. The commissioners made their report, and deposited it for examination, on the 19th of December, 1851; and they, disregarding the exception contained in the resolution of the corporation, reported on the lot at the corner of Wall and Nassau streets, as if it was immediately to be taken and the building removed, and awarded to the owner of the fee, for taking the land and taking down the building on the part of the lot to be taken, and for loss of rent of that part from May 1,1852, $9829, and awarded to the lessees, for their injuries from May 1,1852, various sums. Objections were presented to this report, and among others by the Bank of the Republic; the commissioners (as their report shows,) having allowed the bank • the value of the land taken from it, only, and not the value of the building upon it. The commissioners acted in this contrary to their own judgment, but under the advice of the corporation counsel.
The bank contracted to purchase this lot of ground, with the buildings then on it, January 31,1851, for $110,000, and made [638]*638the first payment on the 22d of February, following. On the 1st of May they obtained possession of the lot, and began to pull down the old building. On the 14th of the same month they made a contract in writing with J. L. Taylor, to do the carpenter’s work of their new building, and to complete it by the 1st of November, 1851. The brown stone-masons were to complete their work by October 1,1851. The ordinary mason made his contract on the 16th of May, and was to complete his work by the 15th of October. On the 28th of July, 1851, the building had been erected to the upper part of the first or principal story above the basement; on the 21st of August, up to the second story j on the 17th of November, up to the attic or fifth story. The cost of taking down this part and making the necessary alterations would be, probably, between eleven and twenty thousand dollars. But for this cost the commissioners make no allowance.
As the map of the property to be taken was not made until the 17th of .September, the commissioners could not have begun to estimate the damages to the respective owners before that time. The map was essential to show them how much was to be taken from each owner, and how it would affect the rest of his property. The commissioners could hardly view the lands to be taken, until a survey should show what was to be taken ; and by the act under which they proceed, they are required “ after having viewed the premises,” and after causing surveys, &c. to be made, to proceed and make a just and equitable estimate and assessment, (§ 178, p. 410.) By the 28th of July, when the order appointing the commissioners was first entered) the building had been erected to the upper part of the first story above the basement; and by the 2lst of August, and before the commissioners could have commenced their estimates, it was erected to the top of -the 2d story; and. by the 17th of Septem-. her, when they might have began, it was probably erected to the top of-the 3d story. Tet it was insisted that for all this value, which was not placed on the property in opposition to any law, the bank was entitled to no compensation.
A somewhat similar case occurred in the matter of opening [639]*639Bloomingdale Square, where no buildings were erected; and it was contended that the property was condemned to the use of the public as of the year 1807 when the act for laying out the city was passed, or as of the year 1811 at the latest, when the map laying out the plan of the city was filed and made public, and that the owners of the square were to have only the value of the lands as it was at one of those years, with interest, and not to have the benefit of any subsequent increase in its value. The court, at general term, (March, 1853,) said that the present value of the land was to be allowed; to be estimated to all the owners as of the same day for all, and that day to be about the time of the completion of the report. And as there had been a' great apparent enhancement of prices within a few years before that date, the court said that the commissioners were not to take as the present value prices far exceeding what could have been obtained at any time within ten years before the last year, unless they considered those enhanced prices the fair and probably permanent values of the land; that the owner was not limited to or entitled to the value in 1811, with compound interest on it, as a sale; but was to have the enhanced value which his property had derived from the permanent plan and settlement of the city; and that this enhanced value was presumed to compensate the owner for the loss occasioned by the prohibition to build since the year 1811. And the case of Furman-street, (17 Wend. 649, 658, 660,) was referred to, where the commissioners had acted on this principle, and their report was adopted.
The principle adopted in this case was that neither the value of property when the law condemning it to the public use was passed or took effect, nor when the land was specially ordered to be taken, nor when the commissioners to estimate its value were appointed, was to be the rule of estimating damages; but the permanent value about the time of the completion of the report. The act referred to, shows that this last period, or one near it, is the correct one; for it directs the commissioners 11 after having viewed” the lands, tenements and premises, and “ after causing all surveys, maps, profiles, plans and other things as they may judge necessary, to be made,” then to proceed and make a just and [640]*640equitable estimate and assessment of thp loss and damage over and above the benefit and advantage to the respective owners, &c. interested in the lands, tenements and premises by or in consequence of the opening, &c. They are required to view the premises, that is, to see them as they are when they view them, and to have surveys, -maps, profiles and plans made of them, at the same time.
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By the Court, Mitchell J.
On the 4th of June, 1851, & resolution of the corporation of ISTew-York was approved by the mayor, which directed that Wall-street, on the northerly side, [637]*637between. Broadway and Nassau street, be widened four feet, except that until June 1,1860, the building or any part of it on the corner of Wall and Nassau streets, on the north side of Wall-street'should not be required by the corporation tobe taken down, but that the same should remain until that date as it was at the date of the resolution. In July of the same year a petition was presented, under the corporate seal of the city, to the supreme court at special term, for the appointment of commissioners of estimate and assessment. At that time it was agreed that the exception in the resolution was void, and that opinion, was expressed by the judge then presiding. No.order on that subject was entered; but probably to conform to that opinion the petition as now on file, and the order entered thereon; omit the exception entirely. The order was entered July 28,1851, though dated on the 5th of that month. The commissioners made the necessary affidavits and took the oath of office on the 29th of July and 1st of August, 1851. The map showing the property to be taken was not completed until September 17, z 1851, and the map of property benefited not until the 27th of October, following. The commissioners made their report, and deposited it for examination, on the 19th of December, 1851; and they, disregarding the exception contained in the resolution of the corporation, reported on the lot at the corner of Wall and Nassau streets, as if it was immediately to be taken and the building removed, and awarded to the owner of the fee, for taking the land and taking down the building on the part of the lot to be taken, and for loss of rent of that part from May 1,1852, $9829, and awarded to the lessees, for their injuries from May 1,1852, various sums. Objections were presented to this report, and among others by the Bank of the Republic; the commissioners (as their report shows,) having allowed the bank • the value of the land taken from it, only, and not the value of the building upon it. The commissioners acted in this contrary to their own judgment, but under the advice of the corporation counsel.
The bank contracted to purchase this lot of ground, with the buildings then on it, January 31,1851, for $110,000, and made [638]*638the first payment on the 22d of February, following. On the 1st of May they obtained possession of the lot, and began to pull down the old building. On the 14th of the same month they made a contract in writing with J. L. Taylor, to do the carpenter’s work of their new building, and to complete it by the 1st of November, 1851. The brown stone-masons were to complete their work by October 1,1851. The ordinary mason made his contract on the 16th of May, and was to complete his work by the 15th of October. On the 28th of July, 1851, the building had been erected to the upper part of the first or principal story above the basement; on the 21st of August, up to the second story j on the 17th of November, up to the attic or fifth story. The cost of taking down this part and making the necessary alterations would be, probably, between eleven and twenty thousand dollars. But for this cost the commissioners make no allowance.
As the map of the property to be taken was not made until the 17th of .September, the commissioners could not have begun to estimate the damages to the respective owners before that time. The map was essential to show them how much was to be taken from each owner, and how it would affect the rest of his property. The commissioners could hardly view the lands to be taken, until a survey should show what was to be taken ; and by the act under which they proceed, they are required “ after having viewed the premises,” and after causing surveys, &c. to be made, to proceed and make a just and equitable estimate and assessment, (§ 178, p. 410.) By the 28th of July, when the order appointing the commissioners was first entered) the building had been erected to the upper part of the first story above the basement; and by the 2lst of August, and before the commissioners could have commenced their estimates, it was erected to the top of -the 2d story; and. by the 17th of Septem-. her, when they might have began, it was probably erected to the top of-the 3d story. Tet it was insisted that for all this value, which was not placed on the property in opposition to any law, the bank was entitled to no compensation.
A somewhat similar case occurred in the matter of opening [639]*639Bloomingdale Square, where no buildings were erected; and it was contended that the property was condemned to the use of the public as of the year 1807 when the act for laying out the city was passed, or as of the year 1811 at the latest, when the map laying out the plan of the city was filed and made public, and that the owners of the square were to have only the value of the lands as it was at one of those years, with interest, and not to have the benefit of any subsequent increase in its value. The court, at general term, (March, 1853,) said that the present value of the land was to be allowed; to be estimated to all the owners as of the same day for all, and that day to be about the time of the completion of the report. And as there had been a' great apparent enhancement of prices within a few years before that date, the court said that the commissioners were not to take as the present value prices far exceeding what could have been obtained at any time within ten years before the last year, unless they considered those enhanced prices the fair and probably permanent values of the land; that the owner was not limited to or entitled to the value in 1811, with compound interest on it, as a sale; but was to have the enhanced value which his property had derived from the permanent plan and settlement of the city; and that this enhanced value was presumed to compensate the owner for the loss occasioned by the prohibition to build since the year 1811. And the case of Furman-street, (17 Wend. 649, 658, 660,) was referred to, where the commissioners had acted on this principle, and their report was adopted.
The principle adopted in this case was that neither the value of property when the law condemning it to the public use was passed or took effect, nor when the land was specially ordered to be taken, nor when the commissioners to estimate its value were appointed, was to be the rule of estimating damages; but the permanent value about the time of the completion of the report. The act referred to, shows that this last period, or one near it, is the correct one; for it directs the commissioners 11 after having viewed” the lands, tenements and premises, and “ after causing all surveys, maps, profiles, plans and other things as they may judge necessary, to be made,” then to proceed and make a just and [640]*640equitable estimate and assessment of thp loss and damage over and above the benefit and advantage to the respective owners, &c. interested in the lands, tenements and premises by or in consequence of the opening, &c. They are required to view the premises, that is, to see them as they are when they view them, and to have surveys, -maps, profiles and plans made of them, at the same time. That is also for the purpose of exhibiting them as they then are, and not as they were at any former time; and then, after obtaining these helps, which furnish means of determining the value of the lands as of the time when they are to be estimated, and not as of any prior time, the commissioners are (with those lights and those only, so far as the statute expressly requires) to proceed and make a just and equitable estimate of the loss and damage to the respective owners. There is no provision for the commissioners discovering the value as of any prior date, whether that be the date when the resolution to take the lands was passed, or when the commissioners were appointed. And if the value at either of those periods were taken, the estimate of the commissioners would not be a just and equitable assessment of the loss and damage.
In this ease the bank did tear down a costly building which was on their lot; and this was not done until after the first of May. If they had delayed this work of destruction until the day after the resolution to widen the street had been passed, or the day after the commissioners were appointed, and the commissioners began their estimates a month after the destruction was completed, does any one suppose that the commissioners ought to have allowed the bank for the value of that part of the old building which had covered these premises'? Or if a storm, or fire, had destroyed the old building, at the time supposed, would the commissioners then have been bound to allow for its value ? If they were not to adopt a value prior to the time of the estimate when it would favor the owner, they should not adopt it when it would injure him.
The cases of Jackson v. The Mayor of Brooklyn, and. of Silliman and Hicks v. The Same, decided in the court for the correction of errors in December, 1848, and affirming the decision! [641]*641in the Matter of Furman-street (17 Wend. 649,) have been referred to, to show that the bank had no right to build, after the order appointing commissioners, or after the resolution of the common council to widen the street. It is not argued thata a precisely similar point was decided, but that the principle involving that point was decided. Both of those cases arose under an express statute relating to Brooklyn; and the points decided in the supreme court were, first, that the act passed in 1816, relating to the then village of Brooklyn, and which required the trustees of the village to cause to be made a plan of the village, exhibiting the streets, roads and alleys to be permanently laid out, and to cause the map to be kept by the clerk of the village, subject to the inspection of any inhabitant, uin order that no resident might plead ignorance of the permanent plan to be adopted for opening, laying out, leveling and regulating the streets of the said village,” (Laws of 1816, p. 95, § 17,) clearly intended to prohibit, from the time the map should be made and filed, any owner from building on the site of any street laid out on the map, except at the risk of not being paid for such building; 2dly, that such prohibition was constitutional, and that it did indirectly provide full and adequate compensation to the owner, for the limited prohibition to build in the increased value given to the adjoining lands by the conversion of country, farms into parts of well and permanently regulated village lots, soon to become valuable city lots. Without such permanent regulations none of the property would so rapidly increase in value; and by them the land forming the site of the street would become, and in that case had become, far more valuable than the value of the land when the law was passed, with compound interest added to it. For these reasons the supreme turt held the law constitutional and valid, and the court for the rrection of errors affirmed that decision.
In like manner the act relating to the city of New-York, (2 R. L. of 1818, p. 414,) provided that no compensation should be made for any buildings which, at any time subsequently to the filing of the maps of the upper part of the city, should be erected pn any street or public square designated on that map. In each [642]*642of these cases there was an express statute which ivas held clearly to prohibit any building after the permanent plans of the village or city had been adopted and published and the maps filed and placed before the public, so that they could not plead ignorance of them. m *
In the lower part of the city there is no statute establishing permanently the lines or corners of streets. The same act which authorized the laying out of the upper part of this city, and the opening of streets there, and prohibited compensation to those who should build on the scite of the streets then laid out, also authorized the corporation to extend, enlarge, or otherwise improve any street in the lower part of the city, but imposed no restriction on the right of the owners in the lower part of the city to receive compensation for their buildings, no matter when they should be erected. This, by implication, leaves to the owners in the last case the general rights to improve their lands when and as they will, until those lands shall be finally occupied by the public.
The public do not bind themselves to adopt an improvement, either by passing a resolution to have it done, or by having commissioners appointed to carry it out; nor by any other act short of a confirmation of the commissioners’ report by the supreme court. At any time before that confirmation the corporation may discontinue the proceeding. (Matter of Canal-street, 11 Wend. 154. 20 Id. 618. 18 John. 546.) How unjust it would be to require every owner to refrain from building on his own land, or to conform his new building to a plan merely proposed by the corporation, when the proceedings might be delayed (as the Canal-street extension has been) for several years, and when the corporation might on its own will then abandon the improvement, after the new building had been made to conform to the proposed plan. In this case the corporation could have discontinued the proceeding at any time before its final confirmation, and in the same period, even against the will of the corporation, the proceeding could be as effectually stayed by a majority of those interested expressing their dissent to the- report. Thus the character of fixedness and permanency which was given by [643]*643the statute on the filing of the map, to the streets in the' upper part of the city, and in the Brooklyn cases, does not exist as to streets in the lower part of the city, until the report is confirmed. • The restriction as to the use of the scite of the streets in the upper part has the authority of a statute, (the supreme law of the state,) and is founded on an indirect compensation. The attempted restriction in the. lower part of the city has no such high authority as a statute to support it, but an implication in the statute against it; has not even a resolution of the corporation to prohibit the use of the site, and is founded on no compensation, direct or indirect.
It is not surprising that a natural sense of justice led two of the commissioners to revolt at the idea of subjecting an owner to such injustice, and that they yielded only on account of the advise of counsél.
In the case of the Corporation of New- York v. Mapes, (6 John. Ch. Rep. 46,) Chancellor Kent refused to grant an injunction to prevent Mapes from building on lands proposed to be taken by a resolution of the corporation, on. the ground that no rights vested until the report of the commissioners should be confirmed; and he said, “ the plaintiffs may perhaps have to pay for the value of the buildings now erecting by the defendants. This is all the inconvenience or loss that the plaintiffs can sustain, and would it not be damnum absque injuria 7 It is a loss which the court cannot prevent without a dangerous and unprecedented interference with the enjoyment of private right. As the case stands, the plaintiffs have shown no right or title, or raised any equity, which can be a ground for an injunction, or by which I am authorized to control the defendants in the usual and ordinary enjoyment and improvement of property to which it is assumed they have an absolute title.” (Id. pp. 50, 51.)
It was said that this was a proceeding in rem, and that the appointment of commissioners operated like a notice of lis pen-dens. The analogy would not favor the appellants. If, in a suit to foreclose a mortgage, a notice of Us pendens be filed; it does not prevent the mortgagor from going on tó improve his property by erecting buildings on it, under any penalty, (like that assumed [644]*644in this ease,) that if the lands be taken from him by a sale he shall be allowed nothing for the new buildings. Nor does the commencement of a foreclosure suit, e converso, compel the mortgagee, when the lands are sold, if he buys them, to pay for improvements which were on the lands when the action was commenced, but which have since been burnt down or otherwise destroyed. The Us pendens does not prevent parties exercising rights which they had, before suit brought. The court may in peculiar circumstances so far anticipate their judgment as to interrupt those rights; but this is by special order only.
[New-York General Term,
May 1, 1854.
Mitchell, Roosevelt and Clerke, Justices.]
It seems to be understood that the corporation have no desire to continue the proceedings, unless the bank shall be compelled to go without compensation for the building. That makes it unnecessary to inquire whether the commissioners’ proceedings are void, as contrary to the resolution of the common council. If the corporation had such desire, it might be necessary to go into this last inquiry also ; as then the proceedings should go back to the commissioners to be corrected.
Order of the special term affirmed, with costs.