Hyperlawhypertext legal database People ex rel. Olin v. Hennessy 150 A.D. 190

← Cases

People ex rel. Olin v. Hennessy

150 A.D. 190 Court First Department, Decision date 1912-04-04 English

Delivered by Scott, J.:

Contents

Majority

p. 190
The People of the State of New York ex rel. Stephen H. Olin and Peter T. Barlow, as Executors, etc., of Samuel L. M. Barlow, Deceased, Relators, v. Joseph P. Hennessy and Others, Composing the Board of Assessors of the City of New York, Respondents.
First Department,
April 4, 1912.

Headnote

Municipal corporation — certiorari — award of damages caused by-change of grade crossing — review of determination of board of assessors.
Certiorari will not lie to review the determination of the board of assessors of the city of New York in refusing to award damages for a change of grade pursuant to section 6 of chapter 423 of the Laws of 1903, as amended by chapter 634 of the Laws of 1905, which provides,- in part, that “ the city of New York shall * * * pay all damages to land and buildings fronting on that portion of the street or avenue closed and discontinued or whose grades shall be changed in consequence of the provisions of this act, which damages shall be ascertained and awarded by the board of
p. 191
assessors oí the city of Hew York," where the record presents no question as to jurisdiction or the regularity of the proceedings of the board of assessors.
Certiorari issued out of the Supreme Court and attested on the 8th day of May, 1911, directed to Joseph P. Hennessy and others, composing the board of assessors of the city of Mew York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in regard to the petition of the relators to be awarded damages for a change of grade.
The authority for awarding such damages is found in section 6 of chapter 423 of the Laws of 1903, as amended by chapter 634 of the Laws of 1905, which reads as follows:
“§6. The Mew York Central and Hudson Eiver Eailroad Company shall at its own expense construct the necessary bridges and abutments required to abolish and discontinue said existing grade crossings at Depot place, Fordham road and East One Hundred and Seventy-seventh street, and to avoid grade crossings at Teunnison place, Exterior street and East One Hundred and Minety-second street (if carried over the said tracks), and to avoid grade crossings at any other streets which may hereafter be lawfully opened and carried over the said tracks between Depot place and East One Hundred and Minety-second street, and shall do all the work within its said leased lines at its own expense; the city of Mew York shall at its own expense make all necessary changes in streets, avenues or public places, and shall at its own expense acquire and construct all approaches to bridges, and pay all damages to land and buildings fronting on that portion of the street or avenue closed and discontinued or whose grades shall be changed in consequence of the provisions of this act, which damages shall be ascertained and awarded by the board of assessors of the city of New York. The said railroad company shall indemnify and save harmless the said city from any rights, claims or liabilities which may arise by reason of, or be created by, contract between either the said railroad company or its lessors and any property owner.”
The relators, being the owners of property affected, filed a claim for damages, which the respondents dismissed without
p. 192
any award of damages, after having taken and considered such evidence as was submitted by the claimants and the city.
Benjamin Trapnell, for the relators.
Charles J. Nehrbas, for the respondents.

In our opinion the determination of the commissioners is not subject to review by certiorari. (People ex rel. Stephens v. Phillips, 88 App. Div. 560 ; People ex rel. Hallock v. Hennessy, 146 id. 440; Johnson v. Pettit, 120 id. 778.) As pointed out in the cases cited, the persuasive reasonings, of which need not be reiterated, the relators’ only claim to receive damages for a change of grade is that which the statute gives it, and it was competent for the Legislature by the same statute to designate the board or body which was to determine the amount of damages if any. In the present case it has devolved that duty upon a board of city officers known as the board of assessors, just as it might have devolved the duty upon any other officer or board. It has not clothed the board with any of the attributes of a body acting judicially, as it has clothed the permanent board known as the change of grade damage commission organized under chapter 567 of the Laws of 1894, which amended chapter 537 of the Laws of 1893, and which has also been amended by chapter 747 of the Laws of 1905, and other acts. The determinations of the latter board have been held to be reviewable by certiorari because the act “-expressly provided rules for the guidance and control of the commissioners,” such rules including an obligation to hear evidence in support of claims or in opposition thereto, and to administer oaths and affirmations to all persons testifying, and after considering the evidence to award such damages as shall be on the evidence presented just and equitable. (People ex rel. Hallock v. Hennessy, supra; Matter of Fitch,, 147 N. Y. 334 .) It was manifest that these provisions called upon the change of grade damage commission to act judicially, but nothing of the sort is made applicable to the board of assessors in this proceeding. They are not required to take evidence, although they may do so if they see fit, and they are not confined to a consideration of the evidence

p. 193
in ascertaining if any damage has been suffered, or as to its amount. The act is entirely silent as to how the assessors shall “ ascertain and award ” the damages, and the matter is, therefore, confided to them discretion. It is true that this court has, in some cases, entertained a certiorari to review the action of the board of assessors under similar statutes, but in those cases we have contented ourselves with passing upon the jurisdiction of the board to. act upon certain claims, and have not undertaken to review their determination where jurisdiction was found to have been vested in them. (People ex rel. City of New York v. Lyon, 114 App. Div. 583 ; affd., 186 N. Y. 545 .) In People ex rel. Heiser v. Gilon ( 121 N. Y. 551 ), which arose under a statute radically different from that now under consideration, the determination of the board of assessors was set aside because, as the court thought, they had failed to give adequate notice of hearing to the property owners affected, whence, as it was considered, they had never actually acquired jurisdiction to proceed, but in that case the Court of Appeals was careful to remark: “The only question that we can consider is the regularity of the proceedings of the board.” In the present case no such question arises.

We are, therefore, of the opinion, and place our decision squarely upon the ground that since the record presents no question of jurisdiction, or of the regularity cf the proceedings, we are without power to review the determination of the board of assessors.

The writ must, therefore, be dismissed, with fifty dollars costs and disbursements to the respondents.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Writ dismissed, with fifty dollars costs and disbursements to respondents. Order to be settled on notice.

Cases cited