People ex rel. Weiser v. Tucker

Headnote

People ex rel. Weiser v. Tucker, 175 App. Div. 976 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 15, 1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the board of assessors of the city of New York to estimate the damages occasioned to real property of relator by reason of a change of grade. The claim was duly presented to the board and evidence was offered in support of it. After consideration the board dismissed the claim on the expressed ground that it is “ not within the provisions of section 951 of the Greater New York charter on which the claim is based.” The specific defect in the case which, it was held, excluded

it from the remedy accorded by section 951 is that the relator’s building was not constructed to conform to the grade shown on a map duly filed by the public authorities on June 14, 1895, but which was hot physically worked until some twenty years later. Relator’s reply to this contention was that long prior to the working of this grade the surface grade of Orotona place had become the legally established grade by more than twenty years’ user, and that her building was erected in conformity with this grade.