In re Varian

Headnote

Matter of Varian, 150 App. Div. 453 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1912, which reversed, for want of power and not in the exercise of discretion, an order of Special Term vacating certain orders of the change of grade damage commission dismissing claims of the petitioners for alleged want of jurisdiction.

The following questions were certified:

“No. 1. Had the Special Term of the Supreme Court, Mr. Justice Peter A. Hendrick presiding, power to make

the order in the above-entitled proceeding that bears date March 7, 1912 1

“No. 2. Was the action of the change of grade damage commissioners (constituted by chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894 and other acts) in dismissing the claimants’ claims for damages, without a trial thereof on the merits, void ?

“No. 3. Were the motion papers in the present proceeding sufficient to authorize the Supreme Court to make an order directing the issuance of a writ of mandamus compelling the change of grade damage commissioners (constituted by chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894 and other acts) to hear and determine, upon the merits, the claimants’ claims for damages ?

“No. 4. Are the claimants’ claims for damages within the area of the jurisdiction of the change of grade damage commissioners within the meaning of the following provision of section 1 of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, namely, the following statutory provisions therein contained: Provided, however, that as to lands or lands and buildings fronting on any street or avenue, except One Hundred and Fifty-seventh Street, the benefits under this act shall be limited to the area within which grades are changed, as shown on any map filed pursuant to chapter seven hundred and twenty-one of the laws of eighteen hundred and eighty-seven.’ ”