People ex rel. Heiser v. Gilon

Headnote

Certiorari — Return—Change of grade of street — Laws 1872, chap. 729.

Upon certiorari to review the action of commissioners in determining-the damages sustained by property owners by a change of grade, pursuant to chap. 729, Laws 1872, the board should not be required to state the items composing the aggregate award, or the methods by which they arrived at their conclusion.

Appeal from an order amending a writ of certiorari by striking out all the particulars in reference to which a return was directed to be made.

In the year 1857, Mrs. Christina E. Smith, of whose will relator is the executor, became, by purchase,-the owner of certain lots between and on Ninety-first and Ninety-second streets, in the city of New York. A portion of the property purchased, comprising eight lots, extended the whole length of the block between Ninety-first and Ninety-second streets, on Eighth avenue; and at the corner of Ninety-second street, standing upon a portion of two lots, Mrs. Smith, in the year 1861, built a dwelling house. There were, from time to time, up to the year 1875, changes of the grade of Eighth avenue authorized, of which authorized changes two were physically worked. The last of these changes in the grade of Eighth avenue was authorized by chapter 593 of the Laws of 1870 ; the grade, under the provisions of this last act, being considerably lowered. While the work of regrading Eighth avenue under the act of 1870 was still in course of completion, the legislature passed a law, chapter 720 of the laws of 1872, which has. been, and now is, the authority under which the assessors have acted, and the appellants litigated their claim for damage through our courts, back and forth, for nearly twenty years.

The act referred to is, in terms, as follows: “ Section 1. The board of assessors of the city of New York are hereby authorized and directed to assess upon the property intended to be benefited by the regulating, grading and improving 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 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 'expense 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 one hundred and seventy-fifth section of the act of April nine, one thousand eight hundred and thirteen, entitled ‘An act to reduce the several laws relating to the city of New York into one act.’ Sec. 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 hereafter be, necessary for the regulating, grading and improving said avenue.” Under the provisions of this act the former board of assessors made an award, afterwards set aside by the court of appeals; and under that decision the present board of assessors proceeded to take proof of damage alleged to have been suffered by the appellant, and make an award therefor.

At the first hearing before the board of assessors, a stipulation was made that the transcript of the stenographer’s minutes of the evidence taken should be sworn to by the witnesses on the part of the claimant and on the part of the city, at the close of the hearing, and before submission to the board of assessors. This stipulation was observed. Sessions extended over a period intervening between June 29, 1891, and December 23d of the same year. The award itself was not made until May 6, 1892. The award being unsatisfactory to the claimant, he applied, ex parte, for a writ of certiorari to review the action of the board of assessors. A writ was granted by Mr. Justice Lawrence on the 21st day of July, 1892. Upon application made in behalf of the assessors, Justice Andrews granted an order to show cause why the writ granted by Mi; Justice Lawrence should not be amended by striking therefrom so much of it as required the assessors “ fully and specifically to state and certify whether, in making the statement and award filed by them with the said comptroller, they allowed, or declined to allow, as proper elements of damage, and, if they did so allow, in what sum, and in what manner, the following several items of damage, loss or injury suffered or sustained by the said relator, and whether or not, and how much, if any, they have awarded for each thereof, to wit: (1) The damage to the house by the different changes of grade; (2) the expense of reducing the surface of the land to the grade of the avenue ; (3)

the expense of protecting the land by a wall, and of building steps; (4) the amounts paid, for assessments for grading, as evidence of the amount of damage to that extent, and as part of the damages ; (5) the difference in the value of the property at the reduced grade and at its original grade; (6) the injury caused by the disorder of the avenue while the diEerent grades were being executed; and, also, (7) whether or not, in making such statement and award, they considered the benefits to said property arising by said changes of grade, and, if so, in what manner and amount, and to what extent; (8) whether or not, in making said statement and award, they considered the damage to the property as a plot of ground bounded by Eighth avenue, Ninety-first and Ninety-second streets, as in the claim set forth, or only part thereof, and what part; (9) whether or not they considered the damage to the land appurtenant to the house as one messuage, or to the two lots on which' the house stood, or to the house alone; (10) in making said statement and award, from what elevation to what depression, in feet and inches, the said board considered the grade of said avenue had been reduced, and what diEerent changes of grade in said avenue they so considered; (11) whether or not, in making said statement and award, they considered the evidence produced by the municipality as to the damage caused by changes of grade; (12) whether or not, in making said statement and award, they estimated the- change of grade from its natural elevation, or from the grade established by any law, and, if the latter, what law or grade; (IS) whether or not they considered that the elimination of view had from said premises, caused by the change of the grade, was a damage, and, if so, how much they awarded the relator therefor.” The motion came on to be heard at a special term, before Mr. Justice Beach, upon whose decision an order was entered, amending the writ by striking out all of the matter, complained of. From this order of Mr. Justice Beach, the claimant appeals.