85 N.Y.S. 200 | N.Y. App. Div. | 1903
Lead Opinion
Chapter 111 of the Laws of 1899 provides that the board of revision of assessments in the city of New York “is hereby authorized and empowered in its discretion to ascertain and determine the damage to the following real property ” specifically described, “and to award damages to the owners thereof to the extent that their said real property ma/y ha/oe leen injured in both fee and rental value in consequence of said changing of said original grades of the streets or avenues on which said several lots abut. * * * The said board of revision shall consider as an element of damage suffered, the amount of any assessment proposed or confirmed for the grading of said several streets or avenues on which said several lots abut, which has been or may be levied against any of said several lots.”
The petition upon which the writ of certiorari was allowed alleges that the relator submitted a claim to the board of revision of assessments for the damage that he had sustained in consequence of the change of grade of Edgewater road which abutted upon the premises described in the act; that this road had existed from colonial times, and the grade of said road was changed by a map filed with the commissioner of street improvements of the twenty-third and twenty-fourth wards on the 2d day of November, 1895; and it is alleged that “ by reason of the said change of grade of Edgewater Eoad the petitioner has suffered damage to the amount of fifty-five thousand three hundred and forty-four dollars and forty-seven cents; ” that “ thereafter, pursuant to said act, the Board of Eevision of Assessments met to consider the said claim;” that the relator appeared and offered proof in support of said claim; that the city of New York appeared before the said board and produced proof on its own behalf in opposition to the claim of the petitioner; and that subsequently the board awarded to the 'relator the sum of $5,296.44, and thereupon issued a certificate that “ pursuant to the
The relator, not being satisfied with this award, obtained a writ of certiorari directed' to the board to review their action in making such award, whereupon, on motion of the defendants, the Special Term quashed and superseded that writ upon the ground, as appears-by the opinion of the Special Term, that the action of the board of revision of assessments was not reviewable in certiorari proceedings, inasmuch as the award, authorized was wholly in the discretion of the board.
It is not altogether clear just what discretion was vested in the board of revision of assessments. It is conceded that, but for this statute, the owners of this property would have no claim to be awarded damages for a change of the grade of the abutting streets; and it would seem that the object of the act was to authorize this board of revision of assessments to make such an award as it in its discretion should determine was the damage to which the owners of the land were equitably entitled on account of some change of grade which is described in the act as “ changing of said original grades of the streets or avenues.” No legal right was given to the owners-of this property to have the question of the amount of damage that the owners of the property had sustained determined by the board of revision of assessments. There was no provision in the act by which any judicial inquiry was authorized, or which authorized the board to take evidence and judicially determine the amount to-which the owners of the property would be entitled. The board, in its discretion, was authorized to ascertain and determine the damages sustained, and were directed to consider as an element of damage suffered the amount of any assessment imposed, or to be imposed, upon the property for the grading of the several streets or avenues
It is not clear but that such an application of the money of the municipal corporation is prohibited by section 10 of article 8 of the Constitution, which provides that “ no county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, * * * nor shall any such county, city, town or village be allowed to-incur any indebtedness except for county, city, town or village purposes.” Bush v. Board of Supervisors (159 N. Y. 212) expressly holds that, under this provision of the Constitution, the statute which .provides for the imposition of a tax upon a town to raise money for the payment of claims, as to which there was no legal or moral obligation on the part of the town to pay, was in conflict with this provision of the Constitution, and that principle has been applied in a number of cases. (See Matter of Chapman v. City of New York, 168 N. Y. 80; Matter of Straus, 44 App. Div. 425 ; Matter of Jensen, Id. 509 ; Matter of Greene, 166 N. Y. 485.)
The act now under consideration authorizes the city of New York to pay to the owners of property the damages sustained by reason of the change of grade in the abutting street. The payment of this sum is not, by the act, restricted to the owner of the land at the time of the change of grade, who had thereby sustained damage. It may be that there existed such a moral obligation on the- part of the municipal corporation that had changed the grade of a street to pay-the damage thereby caused to abutting property as would justify the Legislature in passing an act authorizing or requiring the municipal corporation to pay the amount of such damage; but there certainly was no such moral obligation to pay to persons who had acquired title to the property after the change of grade, and after the damage had been sustained, as would justify the municipal corporation in appropriating money raised by taxation to pay a sum of money for the damage that the property had sustained before they had acquired title. It appears from this record that, after the change of grade in the street, the relator acquired property which, he alleged, was damaged by such change, and that the' change of grade was made before the statute was passed. • Whatever damage
The city has not appealed from the award that was made, and the question as to the power of the Legislature to impose upon a municipal corporation a liability for the damage caused by the change of grade of this street is only relevant in considering the construction to be given to the act; but a careful examination of the act fails to disclose any legal duty imposed- upon the board of revision of assessments or upon the municipal corporation, unless it is an obligation on the part of the municipal corporation to pay any award that should be made by the board of revision of assessments. The board in its discretion is to determine the amount of damage occasioned to the property by the change of grade. It is not restricted to any particular method in the determination of that question, and in view of the limitation of the power of the Legislature to require money that has been raised by taxation to be applied in aid of an individual or for any except city purposes, and the language that is used in the act we think it clear that it was the intention to vest a - discretion in the board in the determination of this question which was not subject to be reviewed.by an appeal to the judicial power. To review that determination would be to substitute the judgment of the court for the discretion that was vested in the commissioner as to the amount that was to be awarded.
The cases in which the court will review the action of subordinate bodies was before the Court of Appeals in People ex rel. Kennedy v. Brady (166 N. Y. 44). It was there said: “ Official acts, executive, legislative, administrative or ministerial in their nature or character were niever subject to review by certiorari. The writ could be issued only, for the purpose of reviewing some judicial act.
It follows, therefore, that there was no official act of the board of ¡revision of assessments that was subject to review by writ of certiorari, and that the order appealed from must be affirmed, with fifty dollars costs and disbursements.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.
Sic.
Concurrence Opinion
I concur upon the ground that the determination of the commissioners authorized by the act is conclusive and cannot be reviewed Iby the court upon appeal.
Order affirmed, with fifty dollars costs and disbursements.