People ex rel. Lester v. Coler — 45 A.D. 463

Majority

p. 463

The People of the State of New York ex rel. Elizabeth W. Lester, Appellant, v. Bird S. Coler, Comptroller of the City of New York, and Edward McCue, Chairman of the Board of Assessors of the City of New York, Respondents.

Headnote

Awa/i'd of damages for a change of grade — a new board of assessors may reconsider it — sufficiency of a notice of hearing—opening case to admit further evidence.

Where a hoard of assessors of the former city of New York, on December 31, 1897, the day preceding that on which the Greater New York charter took effect, entered in their minutes an award for damages caused by a change of grade, and after the installation of the new board of assessors, two of whom were members of the old board, the new board, without objection upon the part of the person to whom the award had been made, proceeded to reconsider her claim for damages, and rejected it after considering the evidence taken and examining the premises, the claimant cannot successfully contend that the award made by the former board was in the nature of a judgment which could not be disturbed by the new board.

A defect ‘in the notice requiring the claimant to appear before the new board of assessors does not .render its determination nugatory, where it appears that the notice was sufficient to call the claimant’s attention to the matters which were being determined, and that she understood the notice and appeared before the board in pursuance thereof. ' .

The board of assessors, after making its determination, is not obliged to reopen the case in order to permit the claimant to produce further evidence.

Certiorari issued out of the Supreme Court and attested on the 19th day of October, 1899, directed to Bird S. Color, comptroller of the city, of New York, and another, requiring them to certify and return to the office of the clerk of the county of New York all and singular the proceedings had by the board of assessors and the board of revision of assessment of the city of New York, in refusing to make an award to the relator, Elizabeth W. Lester, for land taken by the city of New York in changing the grade of one of its streets.

W. H. Peirce, for the relator.

George L. Sterling, for the respondents.

This writ was obtained for the purpose of reviewing the action of the board of assessors and the board of revision for failure to

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make an award to the relator because of a change of grade in Wales •avenue at the corner of St. Joseph’s street, where was located a parcel of land belonging to the relator. It appears that on the 4th ■of March, 1897, the then board of assessors gave notice in the City Record for the presentation of claims for damages by reason of ■change of grade on said avenue, and of the time and place of hearing thereon. The relator presented- a claim for $3,500 damages to her property and offered evidence in support thereof and was heard thereon on the 16th and 23d of September, 1897. The board of ■assessors visited and inspected the premises in question, and on the ■31st of December, 1897, caused to be entered on their minutes certain awards for damages to claimants by reason of change of grade ■on said avenue. They awarded to the relator the sum of $1,242.38. The petition alleges “ that the present board of assessors, consisting ■of Edward McCue, Edward Cahill, Thomas A. Wilson, John Delmar and Patrick M. Haverty were appointed under the- charter of Hew York city before the former board had completed the apportion-, ment in said proceeding ” (the charter of Hew York city going into ■effect on the 1st of January, 1898), “and that the apportionment has been completed by the present board, the former board consisted ■of Thomas J. Rush-, chairman, said Patrick M. Haverty,' John W. ■Jacobus and said Edward McGue,” thus two members of the old board remaining in office.

The petition further alleged that a notice was received on the 26th of February, 1898, that there would be a hearing before the board on the 1st of March, 1898, to consider the claims for damages filed to the proposed assessment; that-'her attorney- appeared at the hearing and was then and there heard by said board on the relator’s ■claim, and said counsel stated to the board that he wanted and ■expected to be heard by said board and to present other evidence of the damage suffered by the relator and other claimants in said proceeding after said board should have made up the list of awards and assessments and published the usual notice for objections thereto should the awards or assessments be unsatisfactory to the petitioners; thus conceding that the question in regard to the awards was still open, that it had not been completed by the former board and that it was a proper subject of action by the present board and to be determined by the conclusion at which-it should arrive. The board,

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thereupon, upon considering the evidence taken, and upon an examination of the premises, refused. to make any award to the relator, And, having completed and lodged in the office of the board of Assessors its assessment list, on the thirty-first of March published a notice for the hearing of objections on or before the 3d of May, 1898. On the 14th of April, 1898, the relator made and presented ■objections in writing in said proceeding to the refusal of the board to make any award for damage to her said premises. On the twenty-sixth of April, at a meeting of said board, her attorney, on behalf ■of relator and other claimants, requested the board to grant him a hearing and an opportunity to present other evidence in support of her claims, and the board then declined to fix any time for such hearing.

The petition further alleges that on the 6th of May, 1898, she made another application for a hearing and an opportunity to present evidence to such board in support of the damage suffered by her, which was refused; and on the twenty-third of June the attorney appeared at a hearing before the board of revision, stating his ■case and requesting to be heard at length, and that the assessment list be returned to the board of assessors for further consideration. The board of revision proceeded and confirmed the said assessment list, which was entered of record in the bureau of arrears of taxes •and assessments on the 23d of June, 1898. The relator thereupon brought this writ of certiorari.

It was claimed on the part of the relator that the determination •of the former board was in the nature of a judgment in favor of the relator, and could not be affected or set aside by the present board of assessors. Upon the facts alleged in her own petition it is apparent "that this position is not well taken. It appears from such allegalions that the matter was never completed, that only steps had been taken towards arriving at a conclusion, and that there had been no •determination up to the time.when the new board went into office. The proceeding was, therefore, open for the new board to act upon; their judgment could not be bound by a tentative determination of che previous board which had not ripened into a judgment, and that this was the understanding of the relator is clear from the .fact of her appearing before the new board without objection, all that she

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insists upon being that in case the new board should make, an award! not satisfactbry to her she should be. allowed to present additional evidence.'

It is claimed that the determination óf the board of assessors was-, nugatory because of some: defect in the notice requiring the objectors to appear before it. It is evident that, if there were any such defects the relator was not misled. by them. She understood the notice and was present before the board in pursuance thereof, .and it was sufficient to call her attention to-the matters which were being determined. It is a familiar principle in regard to notices of -this description that, unless they are calculated to and do mislead) any apparent insufficiency which does not in reality deprive the party to be affected of notice, must be disregarded.

It seems to be quite Clear that the board of assessors was- not obliged to reopen the case at the request of the relator, because she-was dissatisfied with the proposed award, The evidence had-all-been taken and considered prior to the making of the award. hTo' demand or claim was made on the part of the relator tliat she had not given all the evidence Which she desired upon the question ; she .could not wait and speculate as to what the judgment of! the board! would be before she-determined as to whether she had completed her case or not. The board'of assessors having taken all the evidence offered, and having duly -considered that ’evidence, was nofe obliged to. reopen- the case because the award was not satisfactory to. the relator. ’

It does not seem necessary to Consider at length-the other objections raised by the relator. Upon the whole case, we aré of opinion that the writ should be dismissed,.with costs.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred-

Writ dismissed, with costs..