People ex rel. Doyle v. Green — 10 N.Y. Sup. Ct. 755

Majority

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THE PEOPLE ex rel. TERESA A. DOYLE, Respondents, v. ANDREW H. GREEN, Comptroller, and others, Appellants.

Headnote

Assessment — Mandamus to enforce confirmation of— Commissioners of Central Parle — chap. 697 of 1867 — chap. 53 of 1853 — chap. 86 of 1813 (S. L.)—chap. 303 of 1859 — chap. 308 of 1861.

The commissioners of Central Park established a new grade for a portion of One Hundred and Twenty-second street, Hew York, acting under the provisions of chapter 697 of 1867, section 3 of which act provides that all damages arising from altering the grade, shall be ascertained in the manner specified in sections 3 and 4, of chapter 53 of 1853, which last mentioned act provided that the estimate and assessment were to be made as directed in section 175, of chapter 86 of 1813. By chapter 303 of 1869, a board of assessors was organized, with the “ duty of making the estimates and assessments required by law for * * *

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pitching, paving, regulating and repairing streets.” Held, that these words were sufficiently broad to cover the grading of streets done under the law of 1867. That the board of revision and correction, created by chapter 308 of 1861, erred in returning the assessment list to the board of assessors, with directions to strike out the assessment of the relator’s damages for injury to her building by such change of grade, on the sole ground that the latter board had no power to estimate and assess them.

A relator, having no remedy by action at law in such a case, is entitled to a mandamus requiring the assessors to return without change, the assessment list to the board of revision and correction, and that board to confirm the-same.

Appeal from an order of the Special Term granting a peremptory mandamus requiring the confirmation of an assessment .of damages for injuries to relator’s property, arising from the change of grade of One Hundred and Twenty-second street, Hew York, by the commissioners of Central Park, under chapter 697 of 1867.

William Barnes, for the appellants.

James A. JDeerin'g, for the respondents.

We think the order of the Special Term was right, for the following reasons: First. In establishing a new grade for One ' Hundred and Twenty-second street, from Mount Morris square to Hinth avenue, and altering the former grade, the commissioners of Central Park acted under chapter 697 of the Laws of 1867.^[2] The third section of that act provides that “ all damage to any land or "to any building or other structure thereon, existing at the time of the passage of this act * * * by reason of closing such street or altering the grade thereof, shall be ascertained and paid in the manner specified in sections 3 and 4 of an act entitled ‘ An act to make permanent the grades of the streets and avenues in the city of Hew York,’ passed March 4th, 1852.” The building of the relator was erected in 1860, and was “ existing ” at the time of the passage of the act of 1867. The damages to her building and premises by the change of the grade, were therefore a proper subject of estimate and assessment. At the time of the passage of the act of 1867, the estimate and assessment of the damages were doubtless to be made in the mode pointed out by the act of 1852,

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therein referred to, and a reference to the last named act shows that those things were to be done, as provided in section 175 of the act of April 9th, 1813. But the Legislature, by chapter 302, of the Laws of 1859, provided for the organization of a board of assessors, upon which it conferred the “ duty of making the estimates and assessments required by law for * * * pitching, paving, regulating and repairing streets.” The estimate and assessment of damages in such cases as the relator’s, are, as we have seen above, required by law, and the language used in defining the duties of the board of assessors, as above quoted, is broad enough to include the regrading of streets by the commissioners of parks, under the act of 1867. If the words, “ pitching, * * * regulating and repairing,” as used in the act of 1859, are applicable at all to the streets and avenues which are put under the exclusive control and jurisdiction of that commission, there seems to be no reason to doubt that they include the grading anew of those streets under the law of 1867. Otherwise, the expenses of carrying out their powers are to be subdivided for the purposes of estimate and assessment, and in the mode of enforcement and collection. The duties and proceedings intended to be created and applied to the streets transferred from the general jurisdiction of the common council to the commissioners of parks, would be seriously complicated and embarrassed by a construction which should hold that a portion of the damages to be estimated and assessed when an established grade is changed, is to be remanded to the process provided by the law of 1813, while the estimate and assessment of all other damages growing out of the same improvement, are to be conducted by the board of assessors created under the act of 1869. We are of opinion that the board of assessors were clothed with power over the whole subject, and their estimate and assessment of the damages to the relator’s buildings were clearly within their jurisdiction;

Second. The board of revision and correction, constituted by chapter 308 of the Laws of 1861, took thereby the power and authority then vested in the common council of the city of Hew York, relative to assessment lists and the confirmation thereof. It is not necessary to consider the question whether power is given to that board to review the awards made for damage in eases of this

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kind, or whether the board may return the assessment with instructions to the board of assessors to reconsider and revise the awards. Nothing of that kind has been attempted in this ease; but, as we understand the action of the board of revision, it has returned the assessment. list to the board of, assessors, with direction to strike out the assessment of the relator’s damages, on the sole ground that the latter board had no jurisdiction to estimate and assess them. In the decision of that question we are of opinion, that the board of revision erred, and that it was its duty, if no other objection to the assessment existed, to have proceeded to its confirmation. It was not suggested to the court below that any other ground of objection existed. The case was submitted at the Special Term upon the facts presented by the petition and affidavits on the part of the relator, which were either conceded or assumed to be true, and for that reason the mandamus was made "peremptory. No other facts are suggested to us. It is urged by the counsel for the relator, that the assessment had become confirmed by operation of law by reason of the lapse of time. The act of 1861 declares that the revision of such assessment lists shall be made without delay, so that the same shall be confirmed within thirty days from the time they shall respectively be presented for confirmation, and if not so confirmed, they shall be deemed to be confirmed at the expiration of thirty days after they shall be respectively so presented for confirmation. This provision is clearly mandatory, and not simply directory. The assessment ■ in this case was presented for confirmation, February 11th, 1874. No action was taken by the board until the 26th of March, 1874, when the resolution remanding the assessment for revision was adopted. We have not examined subsequent legislation^ to see how far the provisions of the act of 1861 may have been modified, because we do not deem it material to pass upon the effect of the delay of more than thirty days. If, however, the board of revision were right in the position that the board of assessors had no power over the question of such damages, then the proceedings of the latter board would be ooram non judice and wholly void. No lapse of time would confirm such a nullity, and there would, in such case, be no objection to the return of the lists for the purpose of eradicating the excess of jurisdiction, and conforming it to the

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authority possessed by the board of assessors. If this could not be done, then the law would be chargeable with the absurdity of confirming by lapse of time, an assessment which it must in the next breath declare to be absolutely void for want of jurisdictional power in the assessors who made it.

Third. The remedy by mandamus seems to be the appropriate and only one at this stage of the proceedings. The relator has no remedy by action at law for her damages. They are at common law damnum absque injuria;, as has been adjudicated in numerous cases.^[2] Her sole remedy is through the special proceedings authorized by statute, and, unless those proceedings are regularly brought to complete consummation, she cannot enforce payment as permitted by the acts above referred to. Whatever official step is essential to that end, whenever it becomes a duty which an officer or board of officers is legally bound to perform, becomes- also the appropriate subject of mandamus, if the officer refuses to perform the duty to the prejudice of public or private rights. In this case the official requisite to perfect the assessment lists is withheld, in good faith, doubtless, but upon an untenable ground, which in law is no excuse; and besides this, the board of assessors are directed to do an act officially, which the board of revision had not authority to command, but which, if done, will depriv.e the relator of legal rights, by de facto destroying an assessment lawfully made in her favor. To compel the performance of official duties which will prevent any such consequence seems to us a proper office of the' writ of mandamus, although it incidentally arrests action which, when taken, might be the subject of other remedies.

Under the circumstances, we think the appellants should not be charged with costs of the appeal.

Order appealed from affirmed.

Present — Davis, P. J., Daniels and Beady, JJ.

Order affirmed,

* Radcliff’s Executors v. Mayor of Brooklyn, 4 Comstock, 195; Mills v. Brooklyn, 32 N. Y., 489 , and numerous cases therein cited.

Footnotes

* Sess. Laws of 1867, vol. 2, p. 1748.