Clarke, J.:
.This is an appeal from a judgment of the Special Term dismissing the complaint in an equity action brought to determine the ownership of an award, made by the board of assessors of the city of New York for consequential damages sustained- by a plot of five lots situated on the south side of West Ninety-sixth street,-'between ¡Riverside drive and West'End avenue, in. the borough of Manhattan, by reason of the elevation of the grade of Riverside drive by the construction of a viaduct over West Ninety-sixth street.
By chapter 74 of the ¡Laws of 1894
The property in question consists of lots Nos. 86, 87, 88, 89 and 90 in block 1253, section 4 on the tax map, on Ninety-sixth street.' On the 13th.day of June, 1905, the defendant Pettit .filed with the board of assessors his claim for damages to the said property. On the 21st day of February, 1906, plaintiff filed with the said board a claim for damages to said property. The board filed its certificate, dated'March 18, 1906, in which, not referring at . all to the claim ■ filed by Johnson, it awarded to “ Le Grand K. Pettit, as owner at the time the damage accrued herein of the premises known and described on the tax maps of the City of New York as Lots Nos. 86, 87, 88, 89 and 90 in Block 1253, the sum of- * * '* $25,000 with interest, thereon from the 13th day of June, 1905, the date when said claim was filed with the Board of Assessors. Said sum, with the interest thereon, to be paid by .the City of New York to the said Le Grand K. Pettit as and for the damages sustained" xipon and to the land for which said award is made, by'reason of the ele- • vation of the grade of Riverside Avenue due to the construction of the viaduct over West 96th street in said Riverside Avenue, pursuant" to the provisions of Chapter 626, Laws of 1905.’’."
Thereafter this action in equity was brought by Johnson . against Pettit and the city, in which, after setting up the award ais made by the board of assessors, the complaint alleged: “ That, at the time when said damage caused by the construction of the said'viaduct was sustained, and at the time as of which said damage as of right should have been estimated, as provided in the said Act, the said' property claimed to be owned by tlie said Pettit was in fact not ' owned by him but was the property of this plaintiff. That said plaintiff, by reason of- his ownership of said lots, is the person who sustained the damage estimated at the amount awarded as aforesaid by reason of the erection of said viaduct; that he is-the person to whom the said' award should have been made, and is now entitled-to the whole thereof; that said plaintiff was the owner of said property at the time of the commeqcement and of the coin[777]*777pletion of the construction of the said viaduct.” Wherefore the plaintiff demanded judgment that the defendant, the City of New York, be enjoined and restrained from paying the said award to the defendant Pettit; that the said plaintiff be declared the .owner of and the person entitled to the said award and the whole thereof, together with the interest thereon from February 21,-1906, and that the. defendant, the City of'New York, pay the said award with said interest to this plaintiff. ■ '
The learned court, after trial, dismissed the complaint and found as conclusions of law that the power of said board of assessors to make the award to the defendant was permissive, not .mandatory; that it was, under the provisions of chapter 626 of the Laws of 1905, discretionary with said board of asséssors to determine whether the owners of the property did sustain any damages, and, if so, the extent of their damage; that the said' board of assessors having acted judicially within its discretion in determining the date at which or the period during which damages accrued to the owners of the property aforesaid, said determination cannot be reviewed in this action ; that there was no fraud exercised in obtaining the said award, and that the award so made by said assessors was .final and cannot be reviewed ill an action in equity..
The date of the contract was August -7, 1900. Work was commenced on September 11, 1900, and was about half completed in June, 1901. On the 21st of May, 1901, a contract for the exchange of this property was made by Johnson, the then owner, with the defendant Pettit, under which the .deeds were deliverable on- the 21st of June, 1901. The closing of the title was adjourned to the 5th day of September, 1901, and the deed dated as of August 3, 1901, was recorded on September 5, 1901. On July 25, 1902, Pettit .conveyed to Metcalfe, the agent of Johnson, by deed recorded' August 1, 1902, and Metcalfe conveyed to Johnson by deed dated July 31, 1902, recorded December 12, 1902, so that at the time of the completion of the construction- of the viaduct, the title had passed out of Pettit. The result of the award is that this compensation authorized by act of the Legislature as-upon a moral obligation of the city to pay for consequential damages to property injured by a change of grade to recover for which there was no common-law or legal .right and not incident to any condemnation [778]*778proceedings, as no part of the. land was taken for the proposed improvement, was given to the party who held title from June, 1901, to July 25, 1902, while the owner, of the property at the time the original act was passed, at the time the contract was made and the work' -begun, and half completed, and the owner at the final completion of the work received nothing.
-The respondent advances inconsistent reasons to support the judgment. " He claims in one breath that a court of equity has no jurisdiction because the act of the- board of assessors should be reviewed by certiorari or by mandamus, and in the next- breath asserts that certiorari will not lie because the board of assessors were vested with discretion.
I think a court of equity has the right to determine as between rival claimants, to this fund which one was legally entitled to it. This is not a case where the compensation has been divided; it has all been given to one claimant. I take it.
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Clarke, J.:
.This is an appeal from a judgment of the Special Term dismissing the complaint in an equity action brought to determine the ownership of an award, made by the board of assessors of the city of New York for consequential damages sustained- by a plot of five lots situated on the south side of West Ninety-sixth street,-'between ¡Riverside drive and West'End avenue, in. the borough of Manhattan, by reason of the elevation of the grade of Riverside drive by the construction of a viaduct over West Ninety-sixth street.
By chapter 74 of the ¡Laws of 1894
The property in question consists of lots Nos. 86, 87, 88, 89 and 90 in block 1253, section 4 on the tax map, on Ninety-sixth street.' On the 13th.day of June, 1905, the defendant Pettit .filed with the board of assessors his claim for damages to the said property. On the 21st day of February, 1906, plaintiff filed with the said board a claim for damages to said property. The board filed its certificate, dated'March 18, 1906, in which, not referring at . all to the claim ■ filed by Johnson, it awarded to “ Le Grand K. Pettit, as owner at the time the damage accrued herein of the premises known and described on the tax maps of the City of New York as Lots Nos. 86, 87, 88, 89 and 90 in Block 1253, the sum of- * * '* $25,000 with interest, thereon from the 13th day of June, 1905, the date when said claim was filed with the Board of Assessors. Said sum, with the interest thereon, to be paid by .the City of New York to the said Le Grand K. Pettit as and for the damages sustained" xipon and to the land for which said award is made, by'reason of the ele- • vation of the grade of Riverside Avenue due to the construction of the viaduct over West 96th street in said Riverside Avenue, pursuant" to the provisions of Chapter 626, Laws of 1905.’’."
Thereafter this action in equity was brought by Johnson . against Pettit and the city, in which, after setting up the award ais made by the board of assessors, the complaint alleged: “ That, at the time when said damage caused by the construction of the said'viaduct was sustained, and at the time as of which said damage as of right should have been estimated, as provided in the said Act, the said' property claimed to be owned by tlie said Pettit was in fact not ' owned by him but was the property of this plaintiff. That said plaintiff, by reason of- his ownership of said lots, is the person who sustained the damage estimated at the amount awarded as aforesaid by reason of the erection of said viaduct; that he is-the person to whom the said' award should have been made, and is now entitled-to the whole thereof; that said plaintiff was the owner of said property at the time of the commeqcement and of the coin[777]*777pletion of the construction of the said viaduct.” Wherefore the plaintiff demanded judgment that the defendant, the City of New York, be enjoined and restrained from paying the said award to the defendant Pettit; that the said plaintiff be declared the .owner of and the person entitled to the said award and the whole thereof, together with the interest thereon from February 21,-1906, and that the. defendant, the City of'New York, pay the said award with said interest to this plaintiff. ■ '
The learned court, after trial, dismissed the complaint and found as conclusions of law that the power of said board of assessors to make the award to the defendant was permissive, not .mandatory; that it was, under the provisions of chapter 626 of the Laws of 1905, discretionary with said board of asséssors to determine whether the owners of the property did sustain any damages, and, if so, the extent of their damage; that the said' board of assessors having acted judicially within its discretion in determining the date at which or the period during which damages accrued to the owners of the property aforesaid, said determination cannot be reviewed in this action ; that there was no fraud exercised in obtaining the said award, and that the award so made by said assessors was .final and cannot be reviewed ill an action in equity..
The date of the contract was August -7, 1900. Work was commenced on September 11, 1900, and was about half completed in June, 1901. On the 21st of May, 1901, a contract for the exchange of this property was made by Johnson, the then owner, with the defendant Pettit, under which the .deeds were deliverable on- the 21st of June, 1901. The closing of the title was adjourned to the 5th day of September, 1901, and the deed dated as of August 3, 1901, was recorded on September 5, 1901. On July 25, 1902, Pettit .conveyed to Metcalfe, the agent of Johnson, by deed recorded' August 1, 1902, and Metcalfe conveyed to Johnson by deed dated July 31, 1902, recorded December 12, 1902, so that at the time of the completion of the construction- of the viaduct, the title had passed out of Pettit. The result of the award is that this compensation authorized by act of the Legislature as-upon a moral obligation of the city to pay for consequential damages to property injured by a change of grade to recover for which there was no common-law or legal .right and not incident to any condemnation [778]*778proceedings, as no part of the. land was taken for the proposed improvement, was given to the party who held title from June, 1901, to July 25, 1902, while the owner, of the property at the time the original act was passed, at the time the contract was made and the work' -begun, and half completed, and the owner at the final completion of the work received nothing.
-The respondent advances inconsistent reasons to support the judgment. " He claims in one breath that a court of equity has no jurisdiction because the act of the- board of assessors should be reviewed by certiorari or by mandamus, and in the next- breath asserts that certiorari will not lie because the board of assessors were vested with discretion.
I think a court of equity has the right to determine as between rival claimants, to this fund which one was legally entitled to it. This is not a case where the compensation has been divided; it has all been given to one claimant. I take it. that the discretion vested in the board was confined to two propositions: whether any damage had been sustained by .the property, and if so, how much, which discretion is not to be reviewed by the courts in any proceeding, either by, certiorari or mandamus or an- independent action in equity. The board did not act as a court. Ho power of appeal was. given. Its discretion as to those two items does not seem to me in any way reviewable. But the Legislature could not have intended that the board of assessors. could arbitrarily determine as-to the person who should receive the award. If they had determined that a person who had no right or color of-right to the premises should receive it, it would be absurd to say that such action could not be-tested in some wray, because it would be an unconstitutional -exercise of power to make a pure gift of the city’s money to anybody. (Const, art. 8, § 10.)
The validity of this act must rest solely upon moral obligation. Of a .subsequent act which provided for compensation to property owners for damages caused by the change of grade of a highway, authorized by a preceding act, the Court of Appeals said, in Matter of Borup (182 N. Y. 222): “While there was no legal right to damages prior to the act in question, yet the claim of the property owner to compensation for the injury was founded in equity and justice, and it was competent for the Legislature to [779]*779recognize the justice of such a claim by making it obligatory upon the town to pay it when the amount was ascertained in due course of law. The payment of compensation by the town to the property owners, which the statute provides for, is in no proper sense a gift or gratuity of either the money or property of the town, or a loan of its money or credit to an individual. It is simply a method- which the Legislature adopted to repair an injury to an individual inflicted by the town under the authority of law, and the mere fact that the injury was suffered at a time when the property owner was without remedy could not prevent the law-making power from providing a remedy afterwards.”
Of course, there would be no equity or justice in paying to a stranger to the property an amount of money from the city treasury. When the Legislature said “ the amount of damages sustained by the owners of real property,” it meant those persons who were the owners according to the rules of law and who sustained-the damage to their property according to the rules of law.
The determination of the person to receive the award was not within the discretion of the board, but was to be ascertained by well-settled principles of law. In People ex rel. Stephens v. Phillips (88 App. Div. 560) this court affirmed an order of the Special Term quashing and superseding a writ of certiorari issued to review the decision of the board of revision of assessments, authorized by chapter 711 of the Laws of 1899. Said act empowered said board in its discretion to' ascertain and determino the damage to certain real property and to award damages to the owners thereof* to the extent that their said ."real property may have been injured by a change of grade of certain streets. Mr. Justice Ingraham said: “ It appears from this record that after the change- of grade in the street the relator acquired property which he alleged was damaged by such change and that the change of grade was made before the statute was passed. - Whatever damage was caused to this property by the change of grade was caused to its owner 'at the time the change was made. This relator, having purchased the property after such a change had been made, cannot be said to have" been.in any way damaged or injured when the grade of the street is the same as it was when he purchased the property, and I can see no legal or moral obligation upon the municipality to pay him the [780]*780damages that were sustained by his predecessor in title. No part of the relator’s property was taken by the public for the street, and certainly it cannot be presumed that he acquired the right of the owners of the property to be paid the damage caused, by the change of grade prior to the time that he acquired title.”
In. King v. Mayor (102 N. Y. 171) the award in question was for the closing of Bloomingdale road. The court held that the right to the award attached to the owners of the property at the time of the discontinuance of the road. That road ceased to be a public highway in March, 1868) when Edward and William Henry King were the owners of the premises injured by the closing, who, under the provisions of the statute, became entitled"'to all damages which might be awarded for- the injury done. The right to those damages at once accrued, and, although they were not fixed and ascertained until after the conveyance by the Kings to Brennan and .by the latter to the trustees of the cathedral, that fact did-not alter the character of their right as a personal one vested in them at the closing of the road. When paid it related back to the original debt which accrued at the time of closing.
It seems to me that inasmuch as . it was the damage caused to the property by a deprivation of access to the Riverside drive which'was to be paid for, that when, long after the property had been deprived of'said access, the Legislaturef pissed the act' allowing compensation therefor, it must be held that it was intended to be given to those persons who owned the property when it was deprived of its access, and when the damage accrued. If that moment was not when the law was passed providing'for the erection of dhe viaduct it must have been when it became certain that the woi’k would be done. Whenever this period be fixed, as at the time of making the. contract, or at the beginning of the'work thereunder, this plaintiff was then the owner of the property. . It must be borne in mind that the act was passed three years after the completion of the work. The Legislature could not have intended to leave the determination of the ownership of real property to a nonjudicial board to determine in its discretion.
As this court pointed out in People ex rel. Stephens v. Phillips (supra) of. a board acting under a somewhat similar statute,- there W3S no provision in thkr act by which any judicial, inquiry was " [781]*781authorized or which authorized the board to take evidence or to judicially determine the amount to .which the property owners would be entitled. It was permissive rather than mandatory. It was required to keep no record of its proceedings and so there is nothing to review by way of writ of certiorari.
Under the Street Opening Act (Revised Laws of 1813, chap. 86 *), substantially continued in the Consolidation Act † and in the charter,‡ it was provided that the commissioners should set forth, the names of the respective owners, lessees, parties and persons entitled unto or interested in the said lands, and the several and respective sums estimated and assessed as and for the compensation and recompense to be made for the loss and damage of the respective owners, and that upon the confirmation of the report by the court it should be final and conclusive as well upon the said mayor, aldermen and commonalty of the city of New York, as upon the owners, lessees, persons and parties interested in and entitled unto the lands, etc., mentioned in the said report and also upon all other persons whomsoever, Yet, nevertheless, it has been many times held that the finality and conclusiveness of this report so confirmed applies only to the amount of the awards and not to the persons entitled thereto. And it has been-held that an action in equity was an appropriate.proceeding to determine the contesting claims of the various claimants as in Spears v. Mayor (87 N. Y. 359), where, in sustaining an equitable action, the court said: “ There were no conflicting questions of "fact to be settled and the case involved merely questions of law upon undisputed facts. Under such circumstances, under our present system of practice, even if the plaintiffs had mistaken their form of action, it would have been grossly unjust and improper to turn them out of court upon a mere question of form in no way affecting any substantial right.”
In Hatch v. Mayor (82 N. Y. 436) an award -had been made for damages done to premises by a change of grade of a street. The award was not made to the plaintiff, but to one Bowes. It [782]*782was claimed that the action would not lie. . The court said : “We can but think that by the payment to Bowes after knowledge of the-dispute of his title, the city failed in duty to the plaintiff, and that he has a .right to the aid of the courts. We see no reason why he should not have an action for the amount.”
As the city holds the fund applicable-to the payment of the ascertained damage to the real property in question, and as it appearsthat the board of -assessors has, by its certificate, awarded said fund to a person not entitled to it, and as it appears that proceedings by way of certiorari will not run to review and correct that determination, it cannot be that a court of equity is powerless with the parties before it and the facts shown to apply an appropriate remedy.
It seems to me that the dismissal of the complaint was error, and the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Pattebson-, P. J., and Houghton, J., concurred; Ingbaham and Lambebt, JJ., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.
See Laws.of 1895, chap.120.— [Rep.