FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. to sue." It is not contended but that this complaint is good if the plaintiff has standing to maintain the action, and as the second ground of demurrer does not go to the legal capacity of the plaintiff, and as the complaint itself is otherwise good, this ground of demurrer presents no defect in the complaint. The court below in sustaining the demurrer relied upon Robinson v. Oceanic Steam Nav. Co. (112 N. Y. 315); Bogert v. Otto Gas Engine Works (28 App. Div. 463), and some other cases. In the case first above cited a motion was made on the part of the defendant to vacate the summons and dismiss the complaint for want of jurisdiction, based upon the ground that the plaintiff therein was in fact a non-resident and, if so, then he did not have legal capacity to maintain the action under section 1780 of the Code. It was conceded upon the argument of that motion that the plaintiff was in fact a resident of Fall River, in the State of Massachusetts. This being conceded, the motion was properly granted. The action was sought to be saved upon the ground that the plaintiff sued in a representative capacity, and, therefore, had standing to maintain the action. The court negatived this contention, holding that the provision of the Code required that the plaintiff should be an actual resident of the State wherein the action was brought where the suit was against a foreign corporation. In Bogert v. Otto Gas Engine Works (supra) the question arose upon an appeal from an order directing the service of a summons by publication. To procure such an order it is required (Code Civ. Proc. § 438 et seq.) that all of the jurisdictional facts necessary to maintain the action must be stated in order to confer authority upon the court to exercise its power; and as the residence of the plaintiff did not appear upon such appli cation, the court held that no jurisdiction was obtained to grant the order, and, therefore, reversed the same. These cases serve to illustrate the distinction which exists between those classes of cases where the statute or other provision of law makes it absolutely essential to the exercise of judicial power that certain facts be affirmatively established, and that class of cases where the objection may not be taken by demurrer, unless by affirmative averment the lack of jurisdiction is made to appear. Upon the face of this complaint it does not appear that the plaintiff is a non-resident; consequently, it does not appear upon the face of the complaint that he has not legal App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. capacity to sue, or that the court has not jurisdiction of the subject of the action. The demurrer was, therefore, improperly sustained. It follows that the interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, and the defendant given leave to withdraw demurrer and to answer within twenty days on the payment of costs in this court and in the court below. VAN BRUNT, P. J., O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., concurred. Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer within twenty days on payment of costs in this court and in the court below. 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 Trinity Avenue (Although Not yet Named by Proper Authority) from Westchester Avenue to East One Hundred and Sixty-sixth Street, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road in the Twenty-third Ward of the City of New York. THE CITY OF NEW YORK, and Others, Appellants; LEBANON HOSPITAL ASSOCIATION and Others, Respondents. Change of grade of a street in New York city-measure of damage to a building on an abutting lot - effect of the street having been dedicated for street purposes – damages where the land is burdened with easements of passage granted to individuals. Where the lowering of the grade of a street in the city of New York, for a distance of from seventeen to twenty feet below the natural surface thereof, operates to deprive buildings located on land adjoining the street of access to and from the street, and will necessitate the lowering of such buildings or the adoption of some other means of access to and from the street, the measure of damages recoverable by the owner of the buildings, under section 978 of the Consolidation Act and section 980 of the Greater New York charter, is the FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. difference between the value of the buildings as they were before they were deprived of access to and from the street and their value thereafter. The fact that an owner of land dedicates a portion thereof to the public for street purposes and subsequently conveys the land abutting upon the street to a third party, will not prevent such latter grantee from claiming compensation for injury done to buildings located upon the lands granted, in consequence of the subsequent grading of the street. An owner of land, which is burdened with easements of passage granted to private individuals and not to the public, is entitled to substantial damages when the land is taken for a public street. VAN BRUNT, P. J., dissented. REARGUMENT of an appeal by The City of New York and others, 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 13th day of June, 1901, confirming the report of commissioners of estimate and assessment appointed in the aboveentitled matter. John P. Dunn, for the appellant, The City of New York. Ernest Hall, for the respondent, Lebanon Hospital Association and others. PATTERSON, J.: This is an appeal from an order made at the Special Term confirming the report of commissioners appointed in a proceeding instistituted by the city of New York to acquire lands, tenements and hereditaments required for the purpose of opening Trinity avenue from Westchester avenue to East One Hundred and Sixty-sixth street in the twenty-third ward of the city of New York. Written objections were presented to the report of the commissioners by the city of New York and by other parties. In addition to those objections, the commissioners received evidence and heard counsel upon others not included among those stated in writing, and all the objections seem to have been considered by the learned justice at Special Term on the motion to confirm the report of the commissioners. In proceedings of this character it has been the uniform practice of the courts to consider only such objections as were properly and distinctly formulated. Section 984 of the Consolidation Act (under which act this proceeding was begun), which is substantially the same App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. as section 981 of the Greater New York charter, provides that all persons interested in such proceedings or in any of the lands affected thereby, having objections thereto, shall file the same in writing with said commissioners within twenty days after the first publication of the specified notice. Strict observance of the requirements of this statute would confine our review of the action of the commissioners in this proceeding to the written objections filed, but, inasmuch as the commissioners have taken cognizance of the other objections and passed upon them, and the court at Special Term has also considered and passed upon them, we will examine all of any importance without intending by so doing to decide that any of the parties to such a proceeding have the right to be heard on appeal upon any objections other than those presented in conformity with the express requirement of the statute. First. The commissioners made an award of $15,000 to the Lebanon Hospital Association for damages to buildings belonging to that association. This award is challenged by the appellants. Those buildings are situated upon land marked as parcel 1D on the damage map and on the benefit map are marked parcels 255 to 270, 316 to 330. The damages were awarded pursuant to the provisions of section 978 of the New York Consolidation Act and section 980 of the Greater New York charter, which provide that, if the commissioners of estimate and assessment 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 or improving a street or part of a street, they shall proceed to 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 which will accrue in consequence of such intended regulation to the respective owners, lessees, parties and persons respectively entitled unto or interested in the said building or buildings so to be injured by the said intended regulation, and the sums or estimates of compensation and recompense for such loss and damage shall be included by the said commissioners in their report. The evident purpose of this provision of the statutes is to furnish compensation to the owners of buildings affected injuriously by a street improvement when the land upon which such buildings stand FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. is not actually taken by a proceeding in eminent domain. The statutes do not require that there shall be actual physical injury done to such buildings, but contemplate, among other things, that easements, such as of light, air or access, may be impaired or destroyed in such a way as to render the buildings less valuable than they otherwise would be. It is damage by intended regulation for which compensation is to be made. By intended regulation in this case is meant the establishment of the permanent grade of Trinity avenue as it will be after the work of opening that avenue is completed. The evidence shows that on the projected Trinity avenue, on the east of the hospital premises, the opening of the street will require a cut varying in depth from seventeen to twenty feet below the present natural surface of the land. It was necessary for the hospital association to show that the damage to the buildings is a direct consequence of the regulation of Trinity avenue and not of any other street. It is difficult to understand the situation of these buildings and the land upon which they stand without referring to the maps that were before the commissioners. The land formerly belonged to the Sisters of the Ursuline Convent. The buildings were erected in the year 1858. At that time access to them was had from Westchester avenue. North of the property ran One Hundred and Fifty-sixth street, but lands of other owners intervened between that street and the convent property. That property was conveyed to the Lebanon Hospital Association on the 31st of December, 1890, and in the conveyance to it is described as bounded by Westchester avenue on the south, Trinity avenue (not opened) on the east, and Cauldwell avenue on the west, as such streets and avenues were shown on a map filed in the register's office. Westchester avenue was graded in or about 1885; Trinity avenue was not laid out south of One Hundred and Fiftysixth street until 1879; no grade was fixed for the portion of Trinity avenue adjoining the premises of the hospital association until 1895; the grade of Westchester avenue, where Trinity avenue intersects it on the south, and the grade of Trinity avenue north of One Hundred and Fifty-sixth street, where it intersected that street, had been established since 1871, and the grade of Trinity avenue was regulated to meet the grades of Westchester avenue and One Hundred and Fifty-sixth street. Cauldwell avenue, on the west of this prop |