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Second Department, October, 1911.

(Vol. 146. not appeared the bankrupt could have been as well discharged even against it. It is said, however, that in Third National Bank v. Hastings (134 N. Y. 501) there is an intimation that if the creditor, who was subject to the jurisdiction of the bankruptcy court, had assented to a composition releasing the principal debtor, a surety would also be released. That question, however, was not in that case for decision. Nor can I see that the court in its opinion attempted, even by obiter dictum, to consider it. I think that the ruling of the trial court in this case on this question of law was against the clear weight of authority, and that the judgments should be reversed and a new trial ordered, costs to abide the event.

JENKS, P.J., THOMAS, WOODWARD and RICH, JJ., concurred.

Judgments of the Municipal Court reversed and new trial ordered, costs to abide the event.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANCES V.

HALLOCK and JOHN H. HALLOCK, as Administrators, etc., of DAVID H. VALENTINE, Deceased, Relators, v. JOSEPH P. HENNESSY and Others, Composing the Board of Assessors of the City of New York, Respondents.

Second Department, October 13, 1911.

Municipal corporations - city of New York -award of damages caused by erection of Newtown creek bridge - certiorari to review awardLaws of 1905, chapter 582, not unconstitutional.

Certiorari does not lie to review a determination of the assessors of the

city of New York, made under the authority of chapter 582 of the Laws of 1905, awarding damages to landowners abutting upon Vernon avenue caused by the construction of the bridge over Newtown creek, where there has been a hearing and the claimant was permitted to produce

proof. At common law the city is not liable for damages to a landowner caused

by a change in the abutments to such bridge. The right to damages

depends entirely upon the statute. Said statute authorizing compensation to landowners damaged by the

erection of the bridge is not unconstitutional as making a gift or gratuity from public funds.

App. Div.] Second Department, October, 1911.

CERTIORARI issued out of the Supreme Court and attested on the 17th day of May, 1911, directed to Joseph P. Hennessy and others, composing the board of assessors of the city of New York, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their pro ceedings had in awarding certain damages to the relators under chapter 582 of the Laws of 1905.

Benjamin Trapnell [Joseph A. Flannery with him on the brief], for the relators.

Clarence L. Barber [Theodore Connoly and Archibald R. Watson with him on the brief], for the respondents.

CARR, J.:

This is a proceeding by way of writ of certiorari to review a determination of the board of assessors of the city of New York, made under the authority of chapter 582 of the Laws of 1905. It appears from the record before us that prior to 1901 a drawbridge crossed Newtown creek, connecting the borough of Queens with the borough of Brooklyn. As it then existed, this bridge ended on the Queens borough side at Vernon avenue. The approach to that bridge on the Vernon avenue side was about four feet above the level of the roadway, inclining gradu. ally to the sidewalk, so that access to and from the neighboring property was practically undisturbed. In 1901 the city of New York began the erection of a new bridge across Newtown creek in the same place, and necessarily removed the old drawbridge. The new bridge was completed and thrown open to the public in 1905. It is what is known as a bascule bridge, the

span over the water being separable at its middle into two parts, both of which are lifted up into the air to enable vessels to pass through. A change was made in the approaches to the bridge. On the Vernon avenue side the approach began some 1,050 feet from the corner of Vernon avenue and Newtown creek, and was carried along on a steel viaduct, which, as it reached Newtown creek, was about 22 feet above the roadway of Vernon avenue. This viaduct was open below and permitted travel along Vernon avenue to the creek, but it removed substantially all access to and from the bridge to the

Second Department, October, 1911.

[Vol. 146. real property on Vernon avenue where it abutted Newtown creek. In 1905 the Legislature enacted chapter 582 of the laws of that year. This act provides as follows:

“Section 1. The board of assessors of the city of New York is hereby authorized and empowered in its discretion to estimate and determine the damage which the owner or owners of lands and buildings abutting upon Vernon avenue and adjacent to Newtown creek in the borough of Queens have suffered, or will suffer, by reason of the erection and construction of the bridge over Newtown creek, between Manhattan avenue in the borough of Brooklyn and Vernon avenue in the borough of Queens, and to certify the same to the comptroller of the city of New York, setting forth the amount of the said award with interest. Said board of assessors shall deduct from any award of damages so made by them any sum or sums of money which they may find as matter of fact have been allowed for consequential damages to the owner or owners of any such lands or buildings by any commissioners of estimate appointed pursuant to provisions of the charter of the city of New York.

“S2. The amount of such award or awards so certified shall be paid by the city of New York, and the comptroller is hereby authorized to issue corporate stock of the city of New York to the amount of such award or awards with interest.

Ҥ 3. All acts, or parts of acts, inconsistent with the provisions of this act, are hereby repealed.

“$ 4. This act shall take effect immediately."

The relators in this proceeding are the heirs at law of the late Mr. David H. Valentine, who, at the time of his death, owned a parcel of real property at the corner of Vernon avenue and Newtown creek, which fronted on Vernon avenue and likewise upon Newtown creek. On the creek side this property was used as water-front property, and on the avenue side it was devoted largely to small stores, such as a liquor saloon, a cigar store and several other small shops. The relators, acting under the statute aforesaid, presented a claim in writing to the board of assessors of the city of New York, requesting that the damages to their real property be ascertained and certified as provided in the statute. The board of assessors granted a hearing on the claim and took the evidence, under oath, of App. Div.) Second Department, October, 1911. witnesses produced by the claimants, and likewise of witnesses produced by the city of New York. It made an estimate of the claimants' damages in the sum of $15,000. The claimants attack the justice of this estimate as being wholly inadequate, as being in opposition to the testimony produced at the hearing by both the claimants themselves and the city of New York also.

An examination of the record before us shows that the only damages shown by the claimants were such as would arise from a change of grade of the approach to the new bridge. At common law such damages were not enforcible against the city of New York. The right to recover them in this case depends entirely upon this statute of 1905.

The first question arising for determination in this matter is whether there is any power in the courts to review by certiorari the act of the board of assessors in making its estimate under this statute. The solution of this question rests entirely upon whether the statute cast upon the board of assessors the discharge of a judicial duty. The damages claimed arose from no invasion of any legal right of the property owners. They were authorized by the Legislature solely as arising upon a moral basis, they were not a gift or gratuity in the sense of the constitutional prohibition against gifts or gratuities from public funds. (People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188.) The right to them, however, was based upon no binding rule of law, but proceeded voluntarily from the conscience of the State. Was there, in their ascertainment or estimate, any rule to be followed other than the same principle which brought them into being, namely, good conscience and good morals? This question is not without authority to guide its solution in this case. It was held in People ex rel. Stephens v. Phillips (88 App. Div. 560) that where a statute (Laws of 1899, chap. 711), similar to the one at bar, authorized the board of revision of assessments in its discretion to ascertain and determine damages consequential upon a change of grade, but did not prescribe any judicial form or method to control the assessors in their inquiry, their determination as to the amount of damages was not to be viewed as one made in a judicial proceeding, and was not, therefore, subject to review

Second Departinent, October, 1911.

[Vol. 146. by writ of certiorari. It is urged, however, that this decision has been limited by Johnson v. Pettit (120 App. Div. 774). On the contrary, so far as there was any expression of opinion by the court in the case last cited, the earlier case was approved. In Johnson v. Pettit (supra) the only question involved was whether a court of equity would entertain an action to determine conflicting claims to an award of damages made by the board of assessors under chapter 626 of the Laws of 1905, which statute, except that it related to a different locality, was almost, word for word, the same as the statute here in question. It was held that the court could and should entertain such an action, and one of the reasons assigned for such decision was that, in the language of CLARKE, J., writing for the majority of the court: “I take it that the discretion vested in the board was confined to two propositions: whether any damage had been sustained by the property, and if so, how much, which discretion is not to be reviewed by the courts in any proceeding, either by certiorari or mandamus or an independent action in equity. The board did not act as a court. No power of appeal was given. Its discretion as to those two items does not seem to me in any way reviewable.”

In Matter of Fitch (147 N. Y. 334) it was held by the Court of Appeals that certiorari would lie to review the determination of commissioners appointed under chapter 567 of the Laws of 1894 to estimate the damages of abutting owners resulting from a change of grade of certain specified streets in the city of New York. The court, however, expressly based its decision upon the terms of that statute, saying: “The question presented must be determined from the provisions of the act.” The act there in question expressly provided rules for the guidance and control of the commissioners appointed to make the estimate of damages. It was provided in the act, among other things, that “It shall be the duty of said commissioners, or a majority of them, to inquire into the facts or circumstances relating to any claim filed as aforesaid, and to hear the evidence in support thereof or in opposition thereto, and on every such inquiry and hearing to administer oaths or affirmations to all persons testifying, and after duly considering the evidence to award such damages to the respective parties filing

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