131 N.Y.S. 327 | N.Y. App. Div. | 1911
This is a proceeding by way of writ of certiorari to review a determination of the board of assessors of the city of New York, made under the authority of chapter 582 of the Laws of 1905. It appears from.the record before us that prior to 1901 a drawbridge crossed Newtown creek, connecting the borough of Queens with the borough of Brooklyn. As it then existed, this bridge ended on the Queens borough side at Vernon avenue. The approach to that bridge on the Vernon avenue side was about four feet above the level of the roadway,' inclining gradu - ally to the sidewalk, so that access to and from the neighboring property was practically undisturbed. In 1901 the city of New York began the erection of a new bridge across New-town creek in the same place, and necessarily removed the old drawbridge. The new. bridge was completed and thrown open to the public in 1905. It is what is known as a bascule bridge, the span over the water being separable at its middle into two parts', both of which are lifted up into the air to enable vessels to pass through. A change was made in the approaches to the bridge'. On the Vernon avenue side the approach began some 1,050 feet from the corner of Vernon avenue and New-town creek, and was carried along on a steel viaduct, which, as it reached Newtown creek, was about 22 feet above the roadway of Vernon avenue. This viaduct was open below and permitted travel along Vernon avenue to the creek, but it removed substantially all access to and from the bridge to the
“ Section 1. The board of assessors of the city of New York is hereby authorized and empowered in its discretion to estimate and determine the damage which the owner or owners of lands and buildings abutting upon Vernon avenue and adjacent to Newtown creek in the borough of Queens have suffered, or will suffer, by reason of the erection and. construction of the bridge over Newtown creek, between Manhattan avenue in the. borough of Brooklyn and Vernon avenue in the borough of Queens, and to certify the same to the comptroller of the city of New York, setting forth the amount of the said award with interest. Said board of assessors shall deduct from any award of damages so made by them any sum or sums of money which they may find as matter of fact have been allowed for consequential damages to the owner or owners of any such lands or buildings by any commissioners of estimate appointed pursuant to provisions of the charter of the city of New York. ■
Ҥ 2. The amount of such award or awards so certified shall be paid by the city of New York, and the comptroller is hereby authorized to issue corporate stock of the city of New York to the amount of such award or awards with interest.
Ҥ 3. All acts, .or parts of acts, inconsistent with the provisions of this act, are hereby repealed,
“ § 4. This act shall take effect immediately.”
The relators in this proceeding are the heirs'at law of the late Mr. David H. Valentine, who, at the time of his death, owned a parcel of real property at the corner of Vernon avenue and Newtown creek, which fronted on Vernon avenue and likewise upon Newtown creek. On the creek side this property was used as water-front property, and on the avenue side it was devoted largely to small stores, such as a. liquor saloon, "a cigar store and several other small shops. The relators, acting under the statute aforesaid, presented a claim in writing to the board of assessors of the city of New York, requesting that the damages to their'*,real property be ascertained and certified as provided in the statute. The board of-assessors granted a hearing on the claim and took the evidence, under oath, of
An examination of the record before us shows that the only damages shown by the claimants were such as would arise from a change of grade of the approach to the new bridge. At common law such damages were not enforcible against the-city of New York. The right to recover them in this case depends entirely upon this statute of 1905. ' *-
The first question -arising for determination in this matter is whether there is any power in the courts to review by certiorari the act of the board of assessors in making its estimate under this statute. The solution of this question rests entirely upon whether the statute cast upon the board of assessors the discharge of a judicial duty. The damages claimed arose . from no invasion of any legal right of the property owners. They were authorized by the Legislature solely as arising upon a moral basis, they were not a gift or gratuity' in the sense of the constitutional prohibition against gifts or gratuities from public funds. (People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188.) The right to them, however, was based upon no binding rule of law, but proceeded voluntarily from the conscience of the State. Was there, in their ascertainment or estimate,' any rule to be followed other than the same principle which brought them into being, namely, good conscience and good morals ? This question is not without authority to guide its solution in this case. It was held in People ex rel. Stephens v. Phillips (88 App. Div. 560) that where a statute (Laws of 1899, chap. 711), similar to the.one at bar, authorized the board of revision of assessments in its discretion to ascertain and determine damages consequential upon a change of grade, but did not prescribe any judicial -form , or method to control the assessors in their inquiry, their determination as to the amount of damages was not to be viewed as one made in a judicial proceeding, and was not, therefore, subject to review
In Matter of Fitch (147 N. Y. 334) it was held by the Court' of Appeals that cértiorari would lie to review the determination of commissioners appointed under chapter 567 of the Laws of 1894 to estimate the damages of abutting .owners resulting from -a change of grade- of certain specified streets in the city of New York. The court, however, expressly based its decision. upon the terms-of that statute, saying: “The question presented must be determined from the provisions of the act.” The act there in question expressly provided rules for the guidance and control of the commissioners appointed to make the estimate of damages. It was provided in the act, among other things, that “ It shall be the duty of said commissioners, or a majority of them, to inquire into the facts or circumstances relating to any claim filed as aforesaid, and to hear the evidence in ■ support thereof or in opposition thereto, and on every such inquiry and hearing to administer oaths or affirmations to all persons testifying, and after duly considering- che evidence to award ilich damages to the respective parties filing
There remains for final consideration the decision of the Court of Appeals in People ex rel. Heiser v. Gilon (121 N. Y. 551), which the relators cite as absolutely controlling upon the question at bar. In that case chapter 729 of the Laws of 1872 came up for consideration. That act directed the board of assessors of the city of New York to assess upon property benefited by the regulating, grading and improving of Eighth avenue “the amount of damage or injury which each owner of a building or buildings erected on land fronting on said avenue or street has or will sustain or suffer by reason of * such changes of grades and plan of improvement of said avenue heretofore authorized or directed to be made by the Legislature, * * * and shall make and file in the finance department of said city a just and equitable statement and award of the amount of such damage, loss or injury to the owner or owners
In the case at bar there was a hearing and the claimants produced all the- proof they saw fit to offer. In that respect the Heiser case differs radically, from the one at bar. It seems to
Our attention is called to several cases in which the city - of New York succeeded in reviewing by writ of certiorari the determination of the board of assessors as to damages resulting from a change of grade. The most noteworthy is that of People ex rel. City of New York v. Lyon (114 App. Div. 583; affd. without opinion, 186 N. Y. 545). In that case, however, it was not the amount awarded by the assessors, that was in question, but their very power of jurisdiction to make any determination whatever.
The record before us presents no question of irregularity in the procedure of the board of assessors, and no question of abuse of discretion, unless abuse of discretion can be said to arise simply because that body failed to consider itself bound by the testimony of expert witnesses in opposition to its own judgment on a question of values under circumstances where the exercise of its own judgment was expressly required by the statute which gave the power of making a determination. We think the record before us does not present the question of abuse of discretion.
The writ of certiorari should be dismissed, with costs.
Thomas, Woodwaed and Rich, JJ.\, concurred-; Jenks, P. J., not voting.
Writ of certiorari dismissed, with costs.