92 N.Y.S. 22 | N.Y. App. Div. | 1905
Lead Opinion
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 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.
I think, however, that the court is not authorized to review the action of the board of assesssors confirmed by the board of revision
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
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.
Dissenting Opinion
(dissenting):
I am unable to concur with the views expressed by Mr. Justice ■ Ingraham in the opinion delivered by him in this case. It is conceded that by virtue of the provisions of section 874 of chapter 410 ■of the Laws of 1882 (known as. the Consolidation Act), and by the provisions of section 951 of chapter 466 of the Laws of 1901 (being the Greater New York charter as amended)," the relator is entitled to an award of damages if the building owned by him was erected in accordance with the grade of the street, as established on or .about the 21st day of February, 1871, if he sustained damages by reason of the change in grade of the Southern boulevard, made on •or about June 15, 1894. It is said, however, that neither in his notice of claim to the board of assessors, nor in the evidence pro•duced by him before the assessors, did the relator establish that the .house upon the property was built after the grade had been established in 1871; that the only proof upon such subject was that the relator acquired title to the property in 1892 and the building was then upon the property and that there was nothing to show that .such building was not erected before the original grade of the Southern boulevard was established, and that by reason thereof the .relator did not bring himself within the provisions of the statutes -above referred to. This claim wholly overlooks the statement of the petition wherein it appears that the “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. Thereafter and on or about June 15, 1894, the grade of the said Southern Boulevard from East 138th Street to Hunt’s Point Road was changed by the duly authorized public authorities of the City of New York, causing a change and elevation in the grade of said street of about 12 feet in front of your
It is said,, however, that even though this be so, nevertheless the determination by the board of revision of. assessments is coriclusive upon the relator; that no appeal lies therefrom and that a writ, of certiorari is not authorized to review such action. A contrary doctrine was announced in People ex rel. Heiser v. Gilon (121 N. Y. 551) and in People ex rel. Village of Brockport v. Sutphin(supra) and People ex rel. Spencer v. New Rochelle (83 Hun, 185). This court has held that the subject-matter of a determination made by commissioners who were vested with authority, among-other things, to award damages for "a change of grade under a. similar statute was re viewable in this court, . (Matter of Mayor[Tiffany Street], 84 App.. Div. 525; Matter, of Rogers Place,. 65 id. 1.) Hothing contained in Heiser v. Mayor, etc., of N. Y.
It follows that the determinations of the board' of assessors and of "the board of revision of assessments should be vacated and set aside :and the relator be permitted to. present his claim to the existing board of assessors for determination.
Fifty dollars costs and disbursements "are awarded to the-relator,
O’Brien, J., concurred.
Writ dismissed and proceedings affirmed, with" fifty dollars, costs -and disbursements.