In the Matter of the Application of Nettie J. Cauldwell, as Sole Acting Executrix, etc., of Eliza E. Cauldwell, Deceased, Relator, for a Peremptory Writ of Mandamus to Be Directed to William A. Prendergast, as Comptroller of the City of New York, Defendant

In the Matter of the Application of Nettie J. Cauldwell, as Sole Acting Executrix, etc., of Eliza E. Cauldwell, Deceased, Relator, for a Peremptory Writ of Mandamus to Be Directed to William A. Prendergast, as Comptroller of the City of New York, Defendant. First Department, May 16, 1913. Highways—Highway Law, section 59a — interest on award of damages for change of grade. A claimant to whom an award of damages for the change of the grade of a street was made, before the addition of- section 59a to the Highway Law, by chapter 701 of the Laws of 1910, allowing interest on such claims from the time of the change of the grade to the time of the payment of the award, is not entitled to recover interest under said section. Cross-appeals by the relator, Nettie J. Cauldwell, as sole executrix, etc., and by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1913, directing the issuance of a peremptory writ of mandamus requiring the comptroller of the city of New York to pay to the relator an award in a change of grade proceeding with interest from the date of the change of grade. Barclay E. V. McCarty, for the relator. Charles J. Nehrbas, for the defendant. [MAJORITY — Scott, J.:] Scott, J.: The relator is the executrix of the owner of property on East One Hundred and Sixty-sixth street in the city of New York. The grade of this street was changed in the year 1893, and a claim for damages arising therefrom was filed with the change of grade damage commission pursuant to chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, and chapter 747 of the Laws of 1905. On December 22, 1909, the commission made an award of §5,000 to the relator, and its certificate to that effect was filed in the office of the comptroller December 27, 1909. Thereafter and on June 25, 1910, the Legislature passed an act. (Laws of 1910, chap. 701) inserting in the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) the following provision: “§ 59-a. Interest on damages for change of grade. Whenever awards shall be lawfully made, pursuant to any statute of this State, for damages sustained by real estate or any improvements thereon by reason of any change of grade of any street, avenue or road in front thereof, the award for the principal amount of damages sustained shall bear interest at the rate of six per centum per annum from the time of the change of grade to the time of the payment of the award.” The relator claims that under this enactment she is entitled to be paid interest upon the amount awarded to her from the date of the change of grade. To this extent she has been upheld by the Special Term. She also- claims to be entitled " to compound interest, but in this regard she failed to convince the Special Term. The only question we deem it necessary to consider is whether she is entitled to interest as awarded by the order appealed from. Prior to the enactment of the statute quoted above claimants for damages resulting from a change of grade were not entitled to recover interest, because the statute did not so provide. (People ex rel. Central Trust Co. v. Stillings, 136 App. Div. 438; 198 N. Y. 504.) To meet this omission in the statute, chapter 701 of the Laws of 1910 was passed, and it was held that under it claimants were entitled to interest upon all awards made after its passage: (People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188.) The question now presented is whether under this statute, the only one providing for interest in cases like the present, a claimant to whom an award was made before the passage of the act is entitled to recover interest upon such award. The language of the statute does not, seemingly, so provide, and this appears to have been the view of the Court of Appeals, although the precise question was not presented and of course was not intended to be decided. Judge Vajvn, who wrote for the court in People ex rel. Central Trust Co. v. Prendergast (supra), said: “The words used cover all awards made after the passage of the act, for the command is i whenever awards símil he lawfully made * * * the award for the principal amount of damages sustained shall bear interest,’ etc. It embraces in terms al-1 awards thereafter made * * Since the recovery of damages for a change of grade is purely statutory, no more can be awarded in respect of such damages than is specifically authorized by some statute. The statute invoked by the relator does not specifically require that interest should be paid iipon awards made before its passage, and there is, therefore, no authority for its allowance. The order appealed from is, therefore, reversed, in so far as it awards interest to the relator, and is otherwise affirmed, with ten dollars costs and disbursements to the defendant, appellant. Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred. Order reversed to the extent stated in opinion; otherwise affirmed, with ten dollars costs and disbursements to the defendant, appellant. Order to be settled on notice.