137 N.Y.S. 819 | N.Y. App. Div. | 1912
This is a proceeding by writ of certiorari to review a determination of the board of assessors of the city of New York awarding the relators $15,000 and interest from. October 17, 1905, for consequential damages caused to certain lands and buildings in the borough of Queens by the, erection and' construction by the city of New York of a bridge over Newtown creek between the boroughs of Brooklyn and Queens. The claim for damages was filed with the board of assessors pursuant to the provisions of chapter 582 of the Laws of 1905. That act authorized and empowered the board of assessors “ in its discretion to estimate and determiné- 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 ” óf said bridge. On the first hearing we held that we were without power to review the amount of damages awarded by the board of assessors on the ground that the fixing of the amount was by the terms of the act “in its discretion ” and that the exercise of such discretion was not the discharge of a judicial duty. (People ex rel. Hallock v. Hennessy, 146 App. Div. 440.) Upon appeal the Court of Appeals construed the act of 1905 as authorizing the board of assessors to hear or refuse to hear in its discretion the claim of a landowner for damages, but held that after the assessors had once exercised the discretion in favor of assuming jurisdiction to hear a claim, their further action in taxing the amount of an award was judicial and reviewable by us. Accordingly the Court of Appeals remitted the proceeding to us for further action in accordance with the law as established by it. (People ex rel. Hallock v. Hennessy, 205 N. Y. 301.)
Upon this rehearing before us, pursuant to such remittitur of the Court of Appeals, the learned counsel for the board of assessors has contended that the act of 1905, as so construed by the Court of Appeals, is an unconstitutional delegation of legislative powers to the board of assessors, contrary to section 1 of article 3 of the Constitution of the" State of New York. His argument is that as the right to recover consequential damages resulting from municipal improvements of the nature of the one
We are of opinion, therefore, that in view of the decision of the Court of Appeals the matter of the amount of the award should be considered by us upon the merits, rather than that this proceeding should be dismissed on the ground that the act of 1905, as construed by the Court of Appeals, is unconstitutional. The record before us shows that the testimony of the expert called on behalf of the relators fixes the damage at $60,000, whereas the testimony of the expert on behalf of the city fixes the damage on relators’ property at the sum of $29,471. Thus it appears that the board of assessors has arbitrarily fixed the relators’ damage at a sum not warranted by any evidence in the record, and considerably less than the estimate made and the proof presented on behalf of the city. The
In the case at bar the Court of Appeals has held that the action of the board of assessors in fixing the award is judicial. That being so, we do not think that the board is at liberty to find an arbitrary sum not sustained by any evidence in the record. So, too, it should be remembered that the nature of the question before condemnation commissioners differs somewhat from the nature of the question to be determined in the present case. The condemnation commissioners are usually merely required to determine the present value of the premises to be condemned, and it may very well be that an inspection of such premises could furnish considerable assistance in fixing the present value. In this case the question to be determined is not the present value of the premises but the amount of deterioration in value since the building of the bridge by the city,
The writ should be sustained, the determination annulled and the matter remitted to the board of assessors for further proceedings, with costs.
Burr, Woodward and Rich, JJ., concurred; Thomas, J., dissented from the result on the ground that he regards the evidence as justifying the determination.
Writ-sustained, determination annulled, and matter remitted to the hoard of assessors for further proceedings, with costs.