People ex rel. Uvalde Asphalt Pav. Co. v. Seaman

• Decision Date: 25 January 1916
• Citation: 111 N.E. 482,217 N.Y. 70
• Parties: PEOPLE ex rel. Uvalde Asphalt Pav. Co. v. SEAMAN et al.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 70

111 N.E. 482

PEOPLE ex rel. Uvalde Asphalt Pav. Co.

v.SEAMAN et al.

Court of Appeals of New York.

Jan. 25, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the People, on the relation of the Uvalde Asphalt Paving Company, against P.W. Seaman and others, composing the Board of Assessors, and William A. Prendergast and others, composing the Board of Revision of Assessments, to review their action in making an award for damages for change of grade of streets in the city of New York. From an order of the Appellate Division (168 App. Div. 870, 154 N.Y. Supp. 539), sustaining the writ, setting aside the award, and returning the proceedings, the defendants, by permission, appeal on certified questions. Questions answered in the affirmative, and order affirmed.

See, also, 155 N.Y. Supp. 1134.

The Appellate Division, in the order granting leave to appeal to this court, has certified that in its opinion the following questions of law ought to be reviewed by the Court of Appeals, viz.:

1. Did the Supreme Court have jurisdiction to issue the writ of certiorari herein to review the determination of the relator's claim for damages by the board of assessors of the city of New York and the board of revision of assessments?

2. Did the Appellate Division of the Supreme Court of the First Department have jurisdiction in this proceeding to set aside the determination of the relator's claim for damages by the board of assessors of the city of New York and board of revision of assessments of the city of New York?

The facts, so far as material, are stated in the opinion.

Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for appellants.

Lewis M. Isaacs, of New York City, for respondent.

CHASE, J.

[1] The grade of Metropolitan avenue in the borough of Brooklyn, city of New York, was established in 1854. The relator purchased real property abutting on said avenue in 1903 and in 1904, and built upon and otherwise improved said real property in conformity with the established grade thereof. In 1910 the grade of said avenue was changed, and the relator's buildings and improvements were damaged thereby. The relator presented its claim for damages in writing as provided by section 951 of the charter of the city of New York. Charter of the City of New York as amended by Laws of 1912, c. 483. At the time and place specified by the board of assessors “evidence and testimony” offered by the relator of the nature and extent of its injuries was received, by which evidence and testimony it appeared that the relator was damaged to an amount exceeding $25,000. No evidence or testimony was offered or received on behalf of the city. The board of assessors then awarded the relator for its loss and damage the sum of $2,500. It appears from the return of the defendants to the writ that:

“The board of assessors viewed the petitioner's property and the buildings and improvements thereon several times, and they observed the same in relation to the established grade, the surface grade and the grade as worked, and they took their views and observations into consideration in making their determination.”

The report of the board of assessors was submitted for review to the board of revision of assessments of the city of New York, and it also appears from the return to the writ that the board of revision of assessments met and at a hearing before said board the members of the board of assessors were present and-

“did state in answer to inquiries made by members of the board of revision of assessments that the board of assessors had viewed the petitioner's premises several times, and that in determining the amount of damages sustained by the petitioner they took into consideration their personal view of the petitioner's premises.”

The board of revision of assessments overruled the objections of the relator to the award for damages to its' property and confirmed the same. This writ of certiorari was then obtained on the petition of the relator directed to the board of assessors, and to the board of revision of assessments of the city of New York. Section 951 of the charter, so far as it relates to the proceedings of the assessors and to a review of the proceedings of the assessors by the board of revision of assessments, is as follows:

“After hearing and considering the said testimony and evidence [testimony and evidence of the nature and extent of the injury to the owner of the abutting lands] the board of assessors shall make such awards for such loss and damage, if any, as it may deem proper. The amount of the said awards shall be included in the assessment for the regulating and grading of the street in question, as a part of the expense thereof, and the said award, and the proceedings of the assessors in relation thereto, shall be subject to review by the board of revision of assessments.”

The award should be the result of hearing and judicially considering the testimony and evidence taken by the board of assessors. The review by the board of revision of assessments should be a judicial reconsideration of the testimony and evidence taken by the assessors and of the award made by them thereon. Both proceedings are judicial and not administrative. People ex rel. Hallock v. Hennessy, 205 N.Y. 301, 98 N.E. 516;People ex rel. Olin v. Hennessy, 206 N.Y. 33, 99 N.E. 87.

We agree with the opinion of the Appellate Division that the award herein made by the assessors and confirmed by the board of revision of assessments was based upon the individual opinions of the members of the board of assessors in disregard of the testimony and evidence taken by them. The members of the board of assessors were at liberty to view the premises in order to enable them to understand and apply the testimony (People ex rel. Olin v. Hennessy, 159 App. Div. 814, 144 N.Y. Supp. 879), but their duty was at all times according to the express provision of the statute (Charter of the City of New York, § 951) to hear and consider the testimony and evidence and make such award for the relator's loss and damage, if any, as they should deem proper.

[2][3][4] The defendants, however, insist that the writ of certiorari will not lie to review the action of said boards, because the review by the board of revision of assessments is a review of the assessment by a body that can adequately review the same. Code Civil Procedure, § 2122. It is conceded as shown by the statement of the corporation counsel (one of the board of revision) in the court below (People ex rel. Uvalde Asphalt Pav. Co. v. Seaman, 168 App. Div. 870, 154 N.Y. Supp. 539) that the board of assessors and the board of revision of assessments have treated their duties in awarding damages for change of grade as administrative and not judicial. Each board in complete disregard of its duty as a judicial body made an award that was not reached in substantial compliance with the statute. Their determination and the determination of each of them was wholly arbitrary. Such arbitrary action is, in substance and effect, illegal. The relator has not had, and cannot have, a judicial review of the assessment or an adequate review of the proceeding before either board within the meaning of the statute unless the writ of certiorari is sustained. It should be...