People ex rel. Rothschild v. Muh

101 A.D. 423, 92 N.Y.S. 22

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1905
• Status: Published

Opinions

Ingraham, J.:

The relator seeks to review the action of the board of assessors of,' the city of Hew York and the board of revision of assessments, in rejecting a claim of the relafor for damages by reason of the change, of the grade of the Southern boulevard from East One Hundred and Thirty-eighth Street to Hunt’s Point road, in the city of Hew York. The petition alleges that the relator is the owner of certain, premises on the westerly side of the Southern boulevard, ninety-eight feet and one inch north of East One Hundred and Forty-fourth street, improved with a two-story frame building which was-erected prior to the year 1892, when the relator acquired title to the-premises; that the said improvements-were erected in conformity with the grade of the Southern boulevard in front of said premises-duly established by law on or about the 21st day of February, 1871 that thereafter and on or about June 15, 1894, the grade of the. said Southern boulevard was changed causing a change and elevation in the grade of said street of about twelve feet in front of the-- ■ petitioner’s property; that on or about J une 5,1902, the relator filed a.claim for damages by reason of the said .change of grade with the-board of assessors; that at a hearing before the board the relator submitted testimony showing the loss and damage sustained by him by reason of the said change of grade in front of the said premises that on or about the 14th day of October-,‘1902, the board of" assessors made a preliminary report disallowing the relator’s claim for damages and making no award therefor; that thereafter the-final'report of the board of assessors was presented' to the board of' revision of assessments for confirmation, which report was confirmed, and the petitioner’s claim for damages finally disallowed.

By the return it appeared that the relator submitted his claim, to-the board of assessors who received his testimony which is annexed to the return; that one of the board of assessors- visited the property and reported to the board that no damages were sustained to-the relator’s property by reason of the change of grade, whereupon the .board of assessors refused to allow the relator’s claim; that subsequently the relator filed objection with the board of assessors, a copy of which is annexed to the return; that on or about December 4, 1902, the said proposed assessment, with the objections, were ti-ansmitted to the board of revision of assessments; that after certain proceedings had therein on December .29, 1903, the proposed assessment, with a list of awards for damages caused by the change of grade and objections, were again presented to the board of revision of assessments, and the attorneys for- all the parties, including this relator, were then heard, and at a meeting of the board of revision on December 31, 1903, the assessment list, together with a list of awards for damages caused by change of grade, with objections, was taken up, and after consideration the objections against the assessments were overruled and the assessiiient list as amended was-confirmed and the objection of the relator finally overruled.

The evidence annexed to the return shows that the relator was. twice examined before the boa,rd of assessors; first, on the 12th of June, 1902, and again on March 26, "1903, and that it was on this testimony and a personal inspection of the premises by a member of the - board of assessors that the board acted in rejecting the relator’s claim. This application was made to the board of assessors under section 874 of the Consolidation Act (Laws of 1882, chap. 410). This pi'ovision of the Consolidation Act was made a part of the present charter as section 951 of chapter 466 of the Laws-of 1901. It is conceded that the relator has no claim for the damages sustained in consequence of this change of grade, except such as; is given by this section of the charter. That section provides as follows : “ After the taking effect of this act there shall be no liability to abutting owners for originally establishing a grade; nor any liability for changing a grade once established by lawful authority, except where the owner of the abutting property has subsequently to-such establishment of grade built upon or otherwise improved the property in conformity with such established grade and such grade is changed after such buildings or improvements have been made. In. such cases damages occasioned by such change of grade to such buildings and improvements shall be ascertained and assessed in connection with and as a part of the expenses of' grading or otherwise improving the street or avenue in, conformity with the grade-as changed;”Provision is then -made' therein for giving public notice when á street is to be regulated and graded accbrding to a new grade which shall contain a request for all persons claiming to. have been injured by the said change of grade to present in writing to the board: of assessors their claims, and specify a place where and a time when the said board will receive evidence and testimony of the nature and extent of such injury. The section then provides that after hearing and considering .the said testimony and" e vidence, the board of assessors shall make such awards for such loss and damage, if any, as it may deem proper; that the amount of the said awards shall be included in the assessment for the regulating and grading of the street in question, as part of the expense thereof, and that the said awards and the proceedings of the- assessors in relation thereto shall be subject to review by the board of revision of assessments. Before the board of assessors were authorized to make any award to the relator he was required to make it appear to the board that the damage which he claimed was such as is specified in this provision of the charter. ' It is expressly provided that there shall be no liability to abutting owners for changing the grade once established by lawful authority, except where the owner of the abutting property has, subsequently to such" establishment of grade, built upon or otherwise improved the prop-. erty in conformity with such established gradó. Heither in -his notice of claim to the board of assessors, nor in the evidence produced by him before the assessors, did the relator establish that the house upon the property was built after the grade ha,d been established in 1871. The only evidence is that the relator acquired title to the property in 1892, and the building, was then upon the property and that this building was a two-'story frame house, about twenty by thirty feet. There is nothing to show that this building was not erected before the original grade of the Southern boulevard was established, in which case, under the express provisions of the section under which the relator claimed, Jie would not be entitled to damages. "

I think, however, that the court is not authorized to review the action of the board of assesssors confirmed by the board of revision of assessments. A writ of certiorari may issue where, the right to the writ is expressly conferred, or the issue thereof is expressly authorized by a statute, or where the writ may be issued at common law by a court of general jurisdiction, and the right to the writ .or the power of the court to issue it' is not expressly taken away by a statute. (Code .Civ. Proc. § 2120.) Section 2122 of the Code of •Civil Procedure provides that, except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued where the ■determination can be adequately reviewed by an appeal to a court, or do some other body or officer. In Heiser v. Mayor, etc., of N. Y. (104 N. Y. 68), the question of the right of a person injured by a •change of grade of a public street or avenue was before the court. It was there held that before the passage of chapter 729 of the Laws •of 1872, similar to the provisions of the Consolidation Act and the ■charter to which attention has been called, there was no liability, •either at common law or by statute, for injuries occasioned by a ■change of grade in the streets; that the act of 1872 did not purport to create any such liability, except in the mode pointed out and to the extent prescribed by such act, and that the only means of redress .to a property owner were those provided for by the act. ■

The board of assessors heard the plaintiff and determined his •claim adversely to him. The statute then provided a method to review, this determination by an appeal to the board of revision of .assessments. The relator prosecuted this appeal, was heard by the board of revision, 'and the action of the board of assessors was affirmed. It is not alleged that the provisions of the statute as to notice were not complied with, that the relator was not duly heard, ■or that there was any fraud or violation of law affecting the result. But it is urged that upon the evidence there was an erroneous decision of the relator’s claim. The nature of the proceeding and the provision of sections 951 and 953 of the charter for the payment ■of an award is a reason why the final determination of the board of revision should be-a final adjudication as to the right of the plaintiff rto damages for a change of grade. Section 953 of the charter requires the board of assessors to make such an award for such loss .•and damage, if any, as it may deem proper. It then provides that the amount of said award shall be included in the assessment for the regulating and grading of the street in question as a part of the expense thereof. The amount of the assessment is'determined by the expense of the regulating and grading and the damage occasioned by the change of the grade; and the officials who determine; the cost of the improvement being required to impose an assessment upon the property benefited which will reimburse the city for the' cost of the improvement, including the damages. caused by the-change of grade, the city of Hew York is required by section 953-to pay to the respective parties entitled thereto the amount of such, award. Section 951 of the charter then provides a method to review the determination of the board of assessors in determining the questions presented to them, and a mistake can be corrected so that the: cost of the proceedings, including the damages caused by the change; of grade, can be assessed upon the property benefited. But when, the action of the board of assessors is. finally confirmed by the; board of revision, there is no method by which an amount subsequently awarded can be assessed upon the property owners,, and if such a proceeding is allowed, the result would be that • the city of Hew York would be held responsible for a mistake of judgment’ on the part of the assessors in relation to the opening of a publics' street, with no opportunity afforded to compel those benefited, by the improvement to bear the burden. It is clearly the intent of the charter to impose the cost of such an improvement upon the* property benefited and not upon the city. The regulating and grading of a street, while carried out by municipal officers, is not for the benefit of' the municipality as a whole. It is a benefit to-the property in the neighborhood, and the charter provides that the= expenses of such regulating and grading shall be borne by a particular-property benefited, and not by the whole city. As a part of the necessary expenses of grading a street, the statute has provided forth e payment of the damages sustained by abutting property in consequence of a change of grade; but such damages are made a parfc of the expenses of grading of the street, the amount of which is. required to be ascertained' and assessed upon the property benefited by the board of assessors. The right to review the action of the board of assessors in ascertaining the amount to be paid for regulatíng and grading the street, the damages to the abutting, property caused by the change of grade, and the amount of assessment to be imposed, is given to the board of revision of assessments, and a. proper review of the action of the board of assessors is thns provided, and it was the intention to make the action of the board of revision final.

I think, therefore, that the writ should be dismissed and the‘proceedings affirmed, with fifty dollars costs and disbursements.

Yan Brunt, P. J., concurred; Patterson, J., concurred on first .ground ; O’Brien and Hatch, JJ., dissented.