In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening White Plains Road (Although Not Yet Named by Proper Authority) from the Northern Boundary of the City of New York to Morris Park Avenue in the Twenty-fourth Ward, Borough of The Bronx, City of New York; Grace Methodist Episcopal Church of Wakefield, N. Y., Petitioner, Appellant; The City of New York, Respondent

In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening White Plains Road (Although Not Yet Named by Proper Authority) from the Northern Boundary of the City of New York to Morris Park Avenue in the Twenty-fourth Ward, Borough of The Bronx, City of New York. Grace Methodist Episcopal Church of Wakefield, N. Y., Petitioner, Appellant; The City of New York, Respondent. Street openings in New Yoi'k city — commissioners of estimate, where, after the confirmation of their preliminary report awarding damages and before their assessment for benefits, a plan for a change of grade is filed, may be required to include in their report the damages resulting therefrom — the preliminary report, when confirmed, is a final judgment — it may be vacated or modified. Where, subsequent to the confirmation of the preliminary report of commissioners of estimate and assessment, appointed in a proceeding to widen a street in the city of New York, awarding damages to the property owners, and while the commissioners of estimate and assessment are still in office, they not having completed their report in respect to assessments for benefits, a new plan for the improvement of the street is filed, showing a proposed change of grade of five feet, the court may, on the petition of an interested property owner, direct the commissioners of estimate and assessment to make an estimate of the additional damage which will result to the interested property owners in consequence of the change of grade, and to include such estimate in their final report or in a supplemental preliminary report and in the assessment for benefits. In such a case the court will not relegate the interested property owners to their remedy, assuming that such a remedy is available to them, of proceeding under section 951 of the Greater New York charter to have the damages resulting to them in consequence of the change of grade determined by the hoard of assessors. The preliminary report made by the commissioners of estimate and assessment, when confirmed, becomes a judgment of the court, and, unless reversed, modified or vacated, in respect to all matters determined by it, is final and conclusive, and in respect to such matters the commissioners are without further power, but the .court has control of its own judgments and in a proper ease can vacate or modify them. Appeal by the petitioner, the Grace Methodist Episcopal Church of Wakefield, N. Y., from an order of the Supreme Court, made at the Kings County Special Term' and entered in the office of the clerk of the county of Kings on the 6th. day of July, 1904, denying the said petitioner’s motion for an order authorizing and directing the commissioners of estimate and assessment in the above-entitled proceeding to receive its verified claim for damages caused by reason of the intended regulation of .the White Plains road, and directing that they ascertain and determine the amount of such damages and make just and equitable award to said petitioner. F. W. Hottenroth [Ferdinand Pecora and Adolph C. Hottenroth with him on the brief], for the appellant. John P. Dunn [Thomas C. Blake and John J. Delany with him on the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: This is a street opening proceeding taken pursuant to section 970 'et seg. of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of. 1901, chap. 466' and subsequent amendments). Commissioners of estimate and assessment were duly appointed in January^ 1900, and upon being so authorized by a majority vote of the members of the board of estimate and apportionment they made and filed a preliminary abstract or report of their estimate of damages to property owners which was confirmed by an order of the court in November, 1902. By this report the appellant was awarded damages or compensation for that portion of its property acquired by the city for the proposed widening of the street in question. A plan and profile showing the proposed widening, extending and grading was filed in the respective offices as required by the charter (§§ 436, 437) in July, 1899, prior to the appointment of commissioners. In October, 1903, after the confirmation of the preliminary report aforesaid, this map or plan was changed by the filing of a new plan showing a proposed change of grade of five feet. The commissioners are still in office not having completed their report in respect to assessments for benefits, but they have declined to hear the claim of the appellant for injury or damage to its' property not taken for the proposed widening occurring by reason of said change in the plan in respect to grade; and the respondent insists upon this appeal that the preliminary report as to damages, having been made and confirmed, has become a judgment and that the commissioners have become funoti officio so far as the determination of any question relating to damages, and, second, that in any event they should not now be required to consider the question of damages occurring by reason of change of plan-since the making of the preliminary report, for the reason that that will necessitate a revision of all their work in respect to the assessments for benefits, as any additional awards for damages will necessarily have to be included in said assessments, but that the petitioner should he left to the remedy provided by section 951 of the charter. It is undoubtedly true that the preliminary report when confirmed becomes a judgment of the court, and, unless reversed, modified or vacated, in respect to all matters determined by it is final and conclusive, and in respect to such matters the commissioners are without further power, but the court has control of its own judgments and in .a proper case can vacate or modify them. It was held in Matter of Opening of One Hundred and Eighty-first Street (12 N. Y. Supp. 345) that an order confirming the report of commissioners of estimate and assessment could be modified by requiring the commissioners to include in their report a parcel omitted by mistake. Section 980 of the charter specifies the matters to be determined by the commissioners; they are to “ ascertain and estimate the compensation ” which ought to be made to the owners for the lands, etc., required for the improvement, also to estimate and assess “ the value of the benefit and advantage of such improvement to the respective owners,” etc., also if they “ shall judge that any intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street,” etc., they shall “ make, together with the other estimates and assessments required by law to be made by them, a just and equitable estimate and assessment of the loss and damage,” and include the same in their report and in the assessment for benefit. Section 979 provides that they may obtain from the city of New York “a profile or plan, if they shall deem the same useful, showing the intended regulation of the street, or part of a street, with regard to the opening of which they have been appointed, as to the elevation or depression thereof, after the same shall be opened, extended, enlarged, straightened, altered or otherwise improved, as the ease may be.” The last two sections have been respectively amended by chapter 299 and chapter 581 of the Laws of 1905 since the preliminary report of the commissioners has been confirmed, but no substantial change has been made in the.excerpts which I have made therefrom. It is clear that the proposed change of grade is an incident to the widening of the street for which this proceeding -was instituted. By section 974 the court'is given power in such manner as it may direct “ to amend any petition, pleading, proceeding or order, or to supply any defect therein, arising in the course of any special proceeding,” of this nature. If it should now be discovered that the preliminary report already confirmed had omitted parcels necessary to be included, it could scarcely be urged that the court could not amend the, proceedings by directing a supplemental report so as to include such parcels. The report already confirmed will not be affected by requiring the commissioners to determine and report damages to accrue by reason of the change-in the proposed regulation of the street made subsequent to the confirmation of such report, nor is there any force in the suggestion that the petitioner, should be remitted to the remedy afforded by section 951, which is a part of title 2 of chapter 17, and relates wholly to assessments for local improvements other than those confirmed by,a court of record. If this proceeding related merely to a change of grade, damages therefor would have to be determined in the manner provided by said title 2 by the board of assessors, who are required to determine the damage and assess it upon the property benefited as a part of the expenses of such grading, and their proceeding is subject to review by the board of revision of assessments. • While it is not necessary now to determine the question, it may be doubted whether the board of assessors have the power to determine such damage and assess it upon the property benefited where the change of grade is a mere incident to the widening of a street, which is provided for by title 4 of said chapter, pursuant to which the damages must be determined and the assessment made by commissioners appointed by the court whose report must he confirmed by the court. There can be no good reason why there should be two separate proceedings where one will suffice. Such damage is to be included in the assessment- upon the property benefited, and it would seem that the commissioners before whom the matt,er is now pending and who have been considering it for upwards of four years could more expeditiously and correctly determine the damage and make an assessment therefor than can the board of assessors who would have to take the matter up de novo. The fact that the commissioners have heard the evidence relating to benefits to result from the proposed improvement should enable them the more readily to assess whatever additional damage they may find the property owners may suffer by reason of the change in plan. In view of the fact that the commissioners in the proceeding now pending are required by section 980 of the charter to make “ a just and equitable estimate and assessment of the loss and damage which will accrue by and in consequence of such intended regulation,” we are of the opinion that all questions respecting damages and assessments should be determined in this proceeding irrespective of the question Whether the board of assessors in some subsequent proceeding might have the power to determine the damage occurring by reason of the change of grade.' The order should, therefore, be reversed and the commissioners should be directed to make a just and equitable estimate and assessment of the loss and damage which will accrue by and in consequence of the change of grade made by the map or plan filed October 6, 1903, and to include the same in their final report,' or in a supplemental preliminary report and in the assessment for benefit. Hirschberg, P. J., Bartlett and Woodward, JJ., concurred; Hooker, J., not voting. Order reversed, with ten dollars costs and disbursements and motion granted, with costs.