Halpern v. Whittle

Per Curiam. The petitioners, Esther Ruth Halpern and Theodore Halpern, are seeking a review of the determination of the board of assessors of the city of New York in refusing to entertain the petition of Esther Ruth Halpern for damages for a change of grade affecting her premises on Flatbush avenue, Brooklyn, and the determination of the board of revision of assessments confirming such determination. There is practically no dispute concerning the facts. In 1872 (Laws of 1872, chap. 822) the statute provided for the acquiring of title to lands and the laying out and construction of an extension of Flatbush avenue. Condemnation proceedings were had in or about 1872, and the grade of the street was fixed and constructed at the natural grade, and so it remained physically until about 1932. In 1894 there was filed in the office of the town clerk of Gravesend a map which made changes in the original grade. Subsequently that town became a part of Brooklyn. In 1910 the city, by contract, paved a portion of this street which included that part of Flatbush avenue in front of the premises. The pavement was laid at the same grade as had theretofore existed and without regard to the 1894 map, which was apparently either forgotten or abandoned. The expense of paving, at least in part, was assessed on the property of adjacent owners. This, we think, established the grade of the street by lawful authority (Greater New York Charter, § 951) and constituted a repudiation of the old map by official action. In 1925 the house on which damage is claimed was erected in conformity with the grade long existing by virtue of statute and official action. In 1931 the city filed a new grade map, affecting this part of the street and similar in some respects to that of 1894, which prior to that time had never received any official recognition. Apparently this new map was to provide for paving at a higher grade, for there has been a filling-in of the street so that the petitioner’s house is left below the new grade. Her claim for damages has been disallowed on the ground of non-conformance with the legal grade — by which is meant, we assume, the grade established on paper in the map of 1894. In the light of subsequent events, we think that, in 1925, petitioner was not required to build her house to that grade. She had a right [25] to rely on the grade, long existing and unquestioned, which was ratified by the city in paving in 1910. Other questions raised in the briefs do not require consideration. The certiorari proceeding should be sustained and the determinations of the boards annulled, with fifty dollars costs and disbursements, and the matter remitted to the boards to proceed in respect to damages or otherwise as the parties may be advised. Carswell, Davis and Johnston, JJ., concur; Lazansky, P. J., and Taylor, J., dissent and vote to confirm the determinations and dismiss the proceeding, with memorandum.