People ex rel. Heiser v. Gilon — 31 N.Y. St. Rep. 890

Majority

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The People ex rel. Frederick S. Heiser, App’lt, v. Edward Gilon et al., Resp’ts.^[1]

(Court of Appeals,

Filed June 17, 1890.)

Headnote

1. Municipal corporations—Assessment—Notice to property owners.

The board of assessors were authorized by chap. 729, Laws 1872, to ascertain the expense of paving Eighth avenue and assess the same upon the property benefited. They advertised twice in the official journal that an ass-ssment had been completed and filed for examination by persons interested for ‘ ‘ regulating, setting curb and gutter and flagging the Eighth avenue,” and that “ all persons whose interests are affected by the above-named assessments, and who are opposed to the same,” were requested to present their objections at the assessors’ office within thirty days from date. Held, that this notice applied to the assessment for benefits in consequence of the improvement and not to the damages or loss sustained.

2. Same.

The board assessed the amount of damages to the real estate represented by relator, when he was not present, at $5,000. Held, that they failed to give him the proper notice imposed by the act of 1872, and that no legal determination of such damages has yet been made, and the filing with the comptroller of what purports to be an award, without notice to the party, does not satisfy the requirements of the statute.

3. Same.

The fact that the assessors have made and signed an award and filed it in another office does deprive them of the means of making a return to the writ, but does not affect 1he power of the court to review their action, when it can get the record before it from the officer in whose custody it is.

Appeal from order of the supreme court, general term, first department, dismissing writ of certiorari to review proceedings of the board of assessors.

Edward Perkins, for app’lt; D. J. Dean, for resp’ts.

The claim represented by the relator in this proceeding has passed through almost every conceivable stage of litigation. Beginning in 1873, with the presentation by the relator’s testator of a claim for damages to real estate to the board of assessors of the city of Mew York, it was followed by an order awarding a mandamus against the assessors to compel them to act on it, which was resisted by them to a final decision by this court. Then, after the board had acted, a writ of- certiorari was procured, to review what was claimed to be an erroneous or irregular decision, which resulted in the defeat of the relator, on the ground that the action of the board being completed and the assessment filed in the finance department, no power existed in the court to award any judgment against the respondents: People v. Asten, 16 Hun, 407 . The relator then brought an action, based upon allegations of fraud and misconduct on the part of the assessors, to recover damages of the city, caused, as he claimed, by such wrong or misconduct, in which the complaint was dismissed, and that judgment against him was finally affirmed in this court. Heiser v. The Mayor, 104 N. Y., 68 ; 5 N. Y. State Rep., 558. Going back then to the point when the writ of certiorari was dismissed by the general term, he procured the judgment against him in that proceeding „to be opened, succeeded through various motions in bringing in new parties, and in 1888 a reargument of the certiorari was had upon an amended record, with the same result as before, namely, an affirmance of the action of the respondents and a dismissal of the writ, upon the ground that the assessment roll having been filed and the duties of the assessors performed, and the proceedings beyond their control, no relief could be granted by virtue of the writ. The case now appears for the third time in this court, upon an appeal from this order of the general term.

Christina E. Smith, who died August 4, 1874, after filing the claim referred to with' the board of assessors, leaving a will, in which the relator was named as her executor, was the owner of certain real estate fronting on Eighth avenue in the city of Mew York, which street had been, at various times between 1864 and 1872, graded and regulated in pursuance of legislative enactment. It would seem that no method of compensating property owners on this avenue for the damages to their property in consequence of the grading and regulating of the street had been provided by the acts under which the work was done, or by any general law then in force. This led to the passage of chapter 729 of the Laws of 1872, which is the legal authority upon which the relator’s claim rests, and which reads as follows:

“ Section 1. The board of assessors of the city of Mew York are hereby authorized and directed to assess upon the property intended to be benefited by the regulating, grading and improving of Eighth avenue, between Fifty-ninth street and One Hundred and Twenty-second street, the amount of damage or injury which each owner of a building or buildings, erected on land fronting on said avenue or street, has, or will sustain or suffer, by reason of such changes of grades and plan of, improvement of

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said avenue, heretofore authorized or directed to be made by the legislature, or any officer or board in the city of New York, and shall make and file in the finance department of said city a just and equitable statement and award of the amount of such damage, loss or injury to the owner or owners of such building or buildings, on lands fronting on such street or avenue, and opposite thereto, and affected by such change of grade, and the amount of such award shall be included in the expenses of regulating, grading and improving said avenue, and with such expense for regulating, grading and improving said avenue shall be assessed as provided in and by the 175th section of the act of April 9, 1813, entitled “An act to reduce the several laws relating to the city of New York into one act.

“ Section 2. The comptroller of the city of New York is hereby authorized and directed to issue assessment bonds of said city to pay the. amount of such loss or damage so assessed by said board of assessors, together with such an amount as may be necessary to pay the expenses or costs that have been or may be hereafter necessaiy for the regulating, grading and improving of said avenue.

“ Section 3. That this act shall take effect immediately.”

It will be seen that this statute authorized and required the board of assessors to do two things. First,-they were to ascertain and determine the amount of damages, loss or injury which the property owners had sustained by reason of the grading and regulating of the street; and secondly, they were required to assess this sum, together with the expense of doing the work, upon the property benefited. After the damages to the property owners had been ascertained then the assessors were to proceed in assessing them upon the property benefited, according to the procedure prescribed in the one hundred and seventy-fifth section of the act of April 9, 1813, now incorporated in the consolidation act. Laws 1882, chap. 410, § 871. The statute, however, is silent as to how the assessors were to proceed in ascertaining the damages which the property owners had sustained, and no provision is made for notice to them or for a hearing. The duties which the, board was required to perform were essentially judicial in their nature and character. The power and duty to determine the amount of loss or injury which the owners of real estate had sustained involved the exercise of judgment and discretion, and the hearing of such proof as the property owners had to offer and as was pertinent to the inquiry. These judicial functions could not be properly performed, in contemplation of law, without giving to the persons interested in the determination some notice of the time and place of the hearing and an opportunity to be heard.' In the amended return to the writ the assessors state that they gave notice duly by advertising in the official journal on the 29tli day of February, 1876, and again on the 30th day of April, 1876, in the following words:

“Public notice is hereby given to the owner or owners, occupant or occupants, of all houses and lots, improved or unimproved lands affected thereby, that the following assessments have been

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completed and are lodged in the office of the board of assessors for examination by all persons interested, viz.: For No. 1, regulating, grading, setting curb and gutter and flagging the Eighth avenue from Fifty-ninth to One Hundred and Twenty-second street in three sections. * * * All persons whose interests are affected, by the above named assessments, and who are opposed to the same, or either of them, are requested to present their objections in writing to the board of assessors at their office, No. 19 Chatham street, within thirty days from the date of this notice."

This paper was signed by the four persons composing the board of assessors and dated the 29th day of February, 1876. The description of the assessed district is omitted as immaterial to any question involved in the appeal. It is quite plain that this notice applied to the assessment upon property, within a certain district, for benefits in consequence of the improvement and the expenses of making the same, and not to the damages or loss sustained. All persons who were interested in assessments imposed for benefits, and who desired to have the amount imposed reduced, were notified to file objections in writing within a specified time, but there was no suggestion that property owners who had sustained loss or injury by the grading and regulating of the street could present proofs or be heard. The notice called for objections to an assessment made, not for proofs or argument in support of a claim for damages. We are informed by the return that the board determined the amount of damages that the real estate represented by the relator sustained, when he was not present, at $5,000, and that on the 29th day of March, 1876, they filed the certificate of this award with the comptroller of the city of New York, and that they filed the assessment for expenses and benefits with the board of revision and correction of assessments on the 5th day of May, 1876. It appears further that the certificate awarding $5,000 damages to the relator, signed by the assessors, bears date March 27, 1876, and, consequently, whatever proceedings the board of assessors took, for the purpose of determining the amount of the relator’s loss, were prior to that date. There were two distinct and separate proceedings before the board, the result of which is expressed in two papers, namely, the certificate of award as to the damages, and the assessment list as to the expenses and benefits.

Notice was given of the latter by the publication of the advertisement above set forth, but no notice whatever was given of the former, unless the conversation had between the counsel for the relator and the members of the board is to be treated as such, and we think it is not. The notice published cannot, as already observed, be treated as covering the relator’s claim for damages, or as affording him an opportunity to be heard on that subject, and even if it could, the relator was not given the thirty days, designated in the notice, to present his case, as the award was completed as early as March 27 and filed March 29th. It follows that the board in making the award failed to observe an essential requirement in all judicial proceedings, namely, notice to the party interested in the determination, and an opportunity to him to be heard, and that for this reason no regular or legal determination

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of the loss or injury to the real estate of Mrs. Smith has yet been made. The act of 1872 imposed this duty upon the board of assessors without requiring it to be done within any particular time, or by any particular set of assessors. So long as the duty remains unperformed, it is competent for the board to act, and the fact that its membership has changed, and is continually changing, does not affect the question. The act of the assessors of 1876 in filing with the comptroller what purports to be an award of damages, but in fact made without notice to the party interested, and hence irregular and erroneous, does not satisfy the requirements of the statute. It is true that it has been often decided that when assessors have completed the roll and delivered the same to the supervisor, their official powers and functions are ended and a certiorari, then, to review their action, cannot accomplish anything and will be dismissed. Such, no doubt, is the well settled rule in such cases, where no change has been made by special statutes. This rule has been very frequently applied to assessors in towns and cities, required to make assessments of property, for the purpose of general taxation, within a specified time and according to the directions of the statute. Of course, when the time has elapsed and the action of the officers has been completed, they have, ordinarily, no further control of the subject But that is not the case now under consideration.

The legislature, in 1872, conferred power and imposed duties upon an official body, of a judicial nature, to be performed by the persons then comprising the body, or by their successors in office. The power and duty to act remained until the object of the statute was accomplished. If one set of officers refused to act, or acted illegally, that would not relieve their successors from the duty or abridge their powers. True, that in this case, after a valid or an invalid award of damages was made and filed by the board with the comptroller, they could not make return of their determination, upon a writ of certiorari, for the reason that they no longer had possession or custody of the paper that evidenced their official action. It was in the custody of another officer and until he was made a party to the proceedings the court could not know what the proceedings were or get the determination properly before it for review. The comptroller has been made a party to this proceeding and he has made ■ return of the proceedings filed with him and so the record, containing the action of the board of assessors in 1876, was before the general term and is now before this court. The fact that the assessors have made and signed an award and filed it in-another office did deprive them of the means of making a return to the writ, but does not affect the power of the court to review their action when it can get the record before it from the officer in whose custody it is. The Code seems to provide for just such a case. “ The writ must be directed to the body or officer whose determination is to be reviewed; or to any other person having the custody of the record, or other paper to be certified; or to both if necessary.” Code Civ. Pro., § 2129. When the court gets the record before it and it appears that then, or when the writ issued, there was no officer or body

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that had jurisdiction over the matters involved in the determination, or that can act, as in the case of town or city assessors under the general law, after the time within which they can make or review assessments has expired, the office of the writ can not be attained and. it is properly quashed or dismissed. But when, as in this case, a permanent official body is clothed with power and charged with the duty to act, without being limited as to the time, it is an existing authority capable of performing the duty at any time in case a former determination is reversed or set aside. In such cases the courts have the power and it is their duty to review the determination when called upon, though the individuals who made it have ceased to be officers and the record of their proceedings has passed into the custody of some other authority. People v. Supervisors, etc., 51 N. Y., 442 .

The claim which the attorney of the relator’s testator presented to the board, in December, 1873, for injury to her real estate amounted according to the written statement to $104,239.90 and she was allowed $5,000 and assessed for benefit, $5,453.87. The claim may have been extravagant or exaggerated and the award of damages and assessment for benefits just, though the relator contends that the damages given were out of all proportion to the injury sustained. The only question that we can consider is the regularity of the proceedings of the board in making the determination, and as .to that we think that some notice of the time and place of hearing to enable the property owners to be heard was necessary in order to make the determination valid and binding on the parties. This the assessors did not give in the proceedings for the determination of the amount of damages sustained. The record shows that conversations took place between the relator’s counsel and the assessors, or some of them, in which he expressed a desire to offer proofs and they to hear and receive them, but in consequence of sickness of counsel no proofs were given and the determination was in fact made solely upon the examination and j udgment of the assessors and without the knowledge or consent of the relator. The absence of the property owners at the time the determination was made, or their failure to present proofs, could not, of course, prevent the assessors from acting and making the award, providing they had complied with the forms of judicial procedure by the service of notice, proceeding either from themselves or the city, which was interested in that it was liable in the first instance at least for the payment of the award. The only obstacle to prevent the present or some future board of assessors from hearing the relator’s claim under the act of 1872 is the record of 1876, which until reversed or vacated shows that the duty has been once performed, though in a manner not legally binding upon the parties. The order of the general term appealed from should be reversed and the determination of the board of assessors, as to the relator’s claim, vacated and set aside, with costs to the relator.

All concur.