Opinion
December 29, 1917.
Charles J. Nehrbas [ Lamar Hardy, Corporation Counsel, and Terence Farley with him on the brief], for the appellants.
Raymond Gilleaudeau, for the respondent.
At common law the owner of abutting property, which was damaged by a change of grade of the street, had no remedy. However, the Legislature, recognizing the injustice of this rule, has provided that such damages shall be compensated. No right of action is given therefor against the city which does the grading; but a method is provided for furnishing compensation by devoting thereto the unearned increment of value of property benefited by change of grade through an assessment thereon. (Greater N Y Charter [Laws of 1901, chap. 466], § 951, as amd. by Laws of 1916, chap. 516.) Upon the board of assessors this statute casts the power and duty both to judicially determine on evidence considered in the light of a view, the amount of such damage, and to levy such amount by way of assessment upon property which it determines is benefited by the grading. Any party interested in an award, or the city, may appeal to the board of revision of assessments, whose decision is made by the statute final and conclusive. We believe the statute is so worded as to preclude any review by the courts.
Before the enactment of the amendatory law (Laws of 1916, chap. 516) there was no provision that the determination of the board of revision should be final and conclusive, and the Court of Appeals held, in People ex rel. Uvalde A.P. Co. v. Seaman ( 217 N.Y. 70), that a party having exhausted his remedy by appealing from the award of the board of assessors to the board of revision, was entitled to his writ of certiorari. In deciding the Uvalde case the court laid stress upon the fact that the charter did not provide that the determination of the board of revision should be final, saying: "Where a statute prescribes that a specified determination shall be final and conclusive it is a bar as well to a review by common-law certiorari as by appeal." Undoubtedly it was in view of this decision, and to accomplish the result suggested, that chapter 516 of the Laws of 1916 was enacted.
But the respondent claims that the appeal has never been taken to the board of revision, and, therefore, there is no decision of the board to conclude it. Whether, under the facts in the case, the proceedings taken pursuant to section 950 of the charter, of which it had notice, is equivalent to an appeal by the city, so that the decision of the board of revision has the statutory effect of concluding the matter, it is not necessary to decide. If there has been no such appeal and final determination, the respondent has not exhausted its remedy under the act. It was said in the Uvalde case (p. 76): "The writ of certiorari will not ordinarily issue until the remedy by statute has been exhausted." (See cases there cited.) We think that doctrine should be applied in this case in order to fulfill the evident intent of the Legislature that the procedure prescribed in the act should be final and exclusive of any other remedy. If the relator has not exhausted its remedy under the act, it cannot appeal to the courts and so substitute a review by the court in place of that provided by the statute. If it has exhausted its remedy, the determination of the board of revision concludes it.
We do not think that the fact that the corporation counsel, the legal adviser of the city of New York, is a member of the board of revision (Charter, §§ 255, 944; Id. § 255, as since amd. by Laws of 1917, chap. 602), nullifies the amendment of 1916, which makes the determination of that board conclusive. It must be borne in mind that the relator's claim is not against the city. Its claim is satisfied from the avails of an assessment for benefits. The city is the agency for collecting the assessments and paying the awards. It, therefore, has an interest in the regularity and legality of the proceedings, so that the assessment will supply the funds to pay the awards; but its interests are not hostile to the relator. The Legislature has confided to officials of the city the administration of the law, and the rights of relator are derived from the law and have no existence independent of its operation.
I recommend: Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
JENKS, P.J., THOMAS, STAPLETON and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.