People ex rel. Society for Relief of Half Orphan & Destitute Children v. McCue

Majority

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The People of the State of New York ex rel. The Society for the Relief of Half Orphan and Destitute Children in the City of New York, Appellant, v. Edward McCue and Others, Composing the Board of Assessors of the City of New York, and Others, Respondents.

Headnote

Writ of prohibition—not granted to restrain an erroneous decision by the board of assessors in New York city in a matter over which it has jurisdiction — remedy of a property owner aggrieved.

The fact that the board of assessors of the city of New York which, under section 946 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by chap. 466 of the Laws of 1901), has jurisdiction to determine the amount of the expense of a local improvement to be assessed upon the property benefited thereby, is about to erroneously determine' that amount, will.not warrant the issuing of a writ, of prohibition restraining the board from making any deter: ruination in the matter.

In such a case the remedy of the property owners is by an appeal to the board of revision of assessments, or by such further appeal to the courts to review the action of that board as is provided for by law.

Appeal by the relator, The Society for the Relief of Half Orphan . and Destitute Children in the City of New York, from a final order of the Supreme Court, made at' the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1902, denying its application for an absolute writ of . prohibition.

Henry De Forest Baldwin, for the appellant.

George L. Sterling, for the respondents.

Upon a petition presented by the relator the Special Term granted an alternative writ of prohibition, to which a return- was filed, and upon a hearing the absolute writ was denied. We concur in the opinion of the Special Term, but think the writ was properly denied for the additional reason that there is nothing to show that the respondents were without jurisdiction to determine the question before them and which the relator by this writ seeks to prohibit them from determining. This proceeding is now before the board of assessors and their duties are prescribed by section 946 of the charter of the city of Hew York (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466). That section provides that “ All assessments shall he made by the board of assessors on the following certificates.” Provision is then made by which the officer or head of the board or department charged with the execution of the work is to certify to the board of assessors the total amount of all expenses which shall have been actually incurred by the city of Hew York on account of the improvement, and the comptroller is required to certify to the board of assessors the amount of the interest at the legal rate upon the installments advanced or payments made on account of such work, and “ Thereafter the board of assessors shall assess upon the property benefited in the manner authorized by law .the aggregate amount of such certificates or such proportion thereof as is authorized by law, and the said board shall not in any way be .enjoined, restrained, hindered or delayed in the performance of this duty.” By section 944 of the charter power is given to the board of revision of assessments to consider on the merits all objections made to any such assessment and to confirm said assessment or to refer the same back to the board of assessors for revisal and correction in such respects as it may determine.

Upon these two boards is conferred authority to determine whether the whole of the amount specified in the certificates shall be assessed upon the property, or, if not, then to determine the proportion thereof that shall be assessed thereon. If the board of assessors include in the assessment an amount that is not authorized by law, the board of revision of assessments have the power to correct that error and to refer the same back to the board of assessors for revision and correction. The petition alleges that the board of

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assessors, without authority of law, have taken evidence as to the. fair value of the work done, for which they are about to impose an assessment upon the relator’s property, and that the relator has no redress to correct this error, as by section 962 of the charter the court is forbidden to interfere with any assessment which is equivalent to the fair value or fair cost of any local improvement after the same shall have been confirmed. But this will not justify a writ of prohibition. The board of assessors have jurisdiction to determine, under section 946 of the charter, the proportion (of the aggregate amount specified in the certificates furnished by the head of the department and the comptroller that is to be assessed upon the property benefited. The fact that they áre about to erroneously determine that amount does not justify a Writ of prohibition preventing them from making any determination upon the subject. The delay of the local authorities in imposing this assessment is not an objection to such an assessment which would justify a writ of prohibition. There is no time fixed by statute within which such an assessment must be imposed after the work is done, and nothing appears to show that the board was without jurisdiction' to determine the question. The most that appears is that, according to the claim of the relator, the board is about to act erroneously in its determination; and the proper relief in that case is by an appeal to the board of revision of assessments, or such further appeal to the courts to' review the action of that board as is provided for by law in case an erroneous method has been adopted.

The order, appealed from should, therefore, be affirmed, with fifty dollars costs and disbursements.

Van Brunt, P. J., O’Brien,, McLaughlin and Hatch, JJ., concurred.

Order affirmed, with fifty dollars costs and disbursements.