Opinion
April 4, 1912.
Benjamin Trapnell, for the relators.
Charles J. Nehrbas, for the respondents.
In our opinion the determination of the commissioners is not subject to review by certiorari. ( People ex rel. Stephens v. Phillips, 88 App. Div. 560; People ex rel. Hallock v. Hennessy, 146 id. 440; Johnson v. Pettit, 120 id. 778.) As pointed out in the cases cited, the persuasive reasonings of which need not be reiterated, the relators' only claim to receive damages for a change of grade is that which the statute gives it, and it was competent for the Legislature by the same statute to designate the board or body which was to determine the amount of damages if any. In the present case it has devolved that duty upon a board of city officers known as the board of assessors, just as it might have devolved the duty upon any other officer or board. It has not clothed the board with any of the attributes of a body acting judicially, as it has clothed the permanent board known as the change of grade damage commission organized under chapter 567 of the Laws of 1894, which amended chapter 537 of the Laws of 1893, and which has also been amended by chapter 747 of the Laws of 1905, and other acts. The determinations of the latter board have been held to be reviewable by certiorari because the act "expressly provided rules for the guidance and control of the commissioners," such rules including an obligation to hear evidence in support of claims or in opposition thereto, and to administer oaths and affirmations to all persons testifying, and after considering the evidence to award such damages as shall be on the evidence presented just and equitable. ( People ex rel. Hallock v. Hennessy, supra; Matter of Fitch, 147 N.Y. 334.) It was manifest that these provisions called upon the change of grade damage commission to act judicially, but nothing of the sort is made applicable to the board of assessors in this proceeding. They are not required to take evidence, although they may do so if they see fit, and they are not confined to a consideration of the evidence in ascertaining if any damage has been suffered, or as to its amount. The act is entirely silent as to how the assessors shall "ascertain and award" the damages, and the matter is, therefore, confided to their discretion. It is true that this court has, in some cases, entertained a certiorari to review the action of the board of assessors under similar statutes, but in those cases we have contented ourselves with passing upon the jurisdiction of the board to act upon certain claims, and have not undertaken to review their determination where jurisdiction was found to have been vested in them. ( People ex rel. City of New York v. Lyon, 114 App. Div. 583; affd., 186 N.Y. 545.) In People ex rel. Heiser v. Gilon ( 121 N.Y. 551), which arose under a statute radically different from that now under consideration, the determination of the board of assessors was set aside because, as the court thought, they had failed to give adequate notice of hearing to the property owners affected, whence, as it was considered, they had never actually acquired jurisdiction to proceed, but in that case the Court of Appeals was careful to remark: "The only question that we can consider is the regularity of the proceedings of the board." In the present case no such question arises.
We are, therefore, of the opinion, and place our decision squarely upon the ground that since the record presents no question of jurisdiction, or of the regularity of the proceedings, we are without power to review the determination of the board of assessors.
The writ must, therefore, be dismissed, with fifty dollars costs and disbursements to the respondents.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Writ dismissed, with fifty dollars costs and disbursements to respondents. Order to be settled on notice.