People ex rel. Kelly v. Hennessy — 156 A.D. 549

Majority

p. 549

The People of the State of New York ex rel. William Kelly, Relator, v. Joseph P. Hennessy, Chairman, and Others, Composing the Board of Assessors of the City of New York, Respondents, and The City of New York, Defendant.

First Department,

May 2, 1913.

Headnote

Municipal corporations — street grading proceeding, city of Mew York — notice of claim—mistake as to extent of property—award made on erroneous theory that street exists.

Where, through mistake, a claim for damages caused by a change of street grade filed with the assessors of the city of New York did not include a large portion of the lands owned by the claimant, but on the hearing testimony was taken without objection as to the damages to all his property including the portion omitted from the claim, the defect in the claim cannot be urged in opposition to the claimant’s application for a writ of certiorari to review the proceedings.

An award of damages in such proceeding made on an assumption that the claimant’s property had frontage on a certain street, the grade of which had not been changed, when as a matter of fact, the said street, though laid out upon a map, never legally existed, is erroneous, and the mátter will be remitted to the board of assessors for a new hearing and a new award.

Certiorari issued out of the Supreme Court and attested on the 8th day of April, 1910, directed to Joseph P. Hennessy, chairman, and others, composing the board of assessors of the city of New York, commanding them to return and certify to the office of the clerk of the county of New York all and sin-

p. 550

guiar their proceedings had in disallowing the relator’s claim for damages.

Jacob Brenner, for the relator.

Charles J. Nehrbas, for the respondents

William Kelly, was the owner of premises situate in the borough of Brooklyn, city of New York, fronting on Hamilton avenue and extending northerly to the center line of Twelfth street, having a frontage on said avenue of 139 feet 8% inches, on the G-owanus canal of 302 feet 1 inch, on Twelfth street of 190 feet, and irregular, on the easterly side. Had Thirteenth street been opened it would have passed through his property. He filed a claim with the board of assessors of the city of New York for the damages sustained by him by reason of the change of grade of Hamilton avenue approaching' the bridge over the Growanus canal, pursuant to the provisions of chapter 224 of the Laws of 1905, and in said notice of claim, through mistake or oversight, omitted to include the larger portion of the premises in question, which he acquired by virtue of a deed from Audley Clarke and wife and William Calder and wife to himself, dated June 25, 1903. He ¿vidently thought that his claim covered all his property, and so did all the parties concerned, for when he offered said deed in evidence no objection was made to its receipt and it was duly received. Expert testimony was offered by both the claimant and the city as to the damage done to all the property owned by the. plaintiff, including that conveyed under said deed. Had any question been raised as to the failure of the owner to specifically include the property referred to in his notice of claim, it could have been cured by an amendment of his claim, or by the filing of a new one. It is too late to raise the question now, when all the proof of the owner’s damage to his entire holding had been received without question, and sought to be met by proof upon the same issue on behalf of the city.

The defendants allowed to relator the sum of $10,500 as his damages, and in their certificate of award they declare that in reaching their determination and making their award

p. 551

they “have not allowed damage to the property known as lot number 1, in block number 1025, for which damage is claimed by said William Kelly, for the reason that the said property has a 'frontage on 13th Street, whose grade has not been changed under the said act; and we have assumed that the said 13th Street, from First Avenue to the G-owanus Canal in said Borough of Brooklyn, City of New York, is an open street and subject to public use, which fact is denied by the claimant herein.” It appears from the record, was admitted by the corporation counsel upon the argument, and is not controverted in any manner upon his brief, that in this conclusion the defendants were in error; that Thirteenth street as laid out upon the map has never legally existed, and does not now exist, across or upon the land of the claimant; that it was not worked within six years from the túne of its being laid out; and that the existence of a supposed frontage upon that street was no answer to the relator’s claim for damage as to the part of the property in question.

There also appear in the record various exhibits marked “Copies of Correspondence,” the presence of which remains totally unexplained and which apparently were considered by the board of assessors in arriving at their conclusion, although some of them are unsigned and none of them is shown to have been-properly offered or received in evidence.

The defendants having assumed jurisdiction over relator’s claim and undertaken to determine the amount of his damages, their action is subject to review by the court. (People ex rel. Hallock v. Hennessy, 205 N. Y. 301 .)

The writ of certiorari will, therefore, be sustained, with fifty dollars costs and disbursements, the award heretofore made to the claimant set aside, and the matter remitted to the board of assessors for a rehearing and new award in conformity herewith.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Writ sustained, with fifty dollars costs and disbursements, award set aside and matter remitted to the board of assessors as stated in opinion. Order to be settled on notice.

Cases cited

People ex rel. Hallock v. Hennessy 205 N. Y. 301 N.Y. 1912-04-30 p. 551