In re Eytzinger

I think the application must be denied for the following reasons:

1. Because the matters alleged in the petition do not constitute “ substantial error,” authorizing the court to interfere with the action of the board of assessors.

2. Because the proof does not warrant a finding reversing the determination of the board of estimate and the subsequent proceedings of the local board of the New Lots district and the board of assessors that the work done involved a change of grade provided for in the charter.

The power of the court to interfere with assessments for local improvements is derived entirely from the statute. Unlike street openings, these proceedings are not based upon a decree of the court, but are matters confided to the legislative branch of the government, authorized by the board of estimate and carried on under their supervision. Even though the court at special term might differ with the city authorities in their findings, it has no right to substitute its judgment for that of the officials to whose decision such matters are relegated. Matter of Shaffer, 139 App. Div. 35, and cases there cited. By special provision of section 959 of the charter, however, the court may inquire into the action of the board of assessors in levying an assessment for a local improvement and in. cases of “ fraud or substantial error ” in their proceedings may modify the assessment or reduce it as justice may require.

The question presented here is whether property owners after these proceedings before the city authori*37ties have been, completed, after the hearings held upon notice before the board of estimate, the local district board and the board of assessors, at which all persons interested had the right to appear, with the right to the statutory appeal to the board for revision of assessments, under section 944 of the charter — after all this is done, and the authorities have determined that a change of grade is required, necessarily finding that there is in fact an existing grade, and after the work is done, the assessments levied and awards made, can attack the findings of the legislative department of the government as to the necessity for the improvement in a proceeding under section 959. I think this is the real nature of this application. The improvement was ordered and completed, and the cost incurred, solely because the duly constituted authorities found that a grade had been established under the government of the old town of New Lots, and that Belmont avenue, formerly Bay avenue, was laid out and used upon that grade prior to the annexation of the town to the old city of Brooklyn. In other words, their determination to go on with the improvement was a finding to follow the language of section 951 of the charter, that a grade “ had been originally adopted by the action of the public authorities [in this case the former town of New Lots] or that the street has been used by the public as of right for twenty years and had been improved by the-public authority at the expense of the public or of the abutting owners.” Passing'for the moment a consideration of the proof adduced before the referee, which, it seems to me, justified the determination of the city authorities, I am of opinion that their finding here presented is not subject to review by the courts. No suggestion is made that there was any fraud in the proceedings.. That was the situation in Matter of Livingston, 121 N. Y. 94, where the assessment was va*38cated because of gross overcharging, amounting to, as the Court of Appeals said, at least constructive fraud, and it was for this reason that the court interfered.

“ Substantial error ” in the proceedings means, in my opinion, cases such as Scudder v. Mayor, 146 N. Y. 245, where the Court of Appeals held that the property owner must have recourse to this proceeding, the “ error ” consisting of unlawfully doing the work of improvement by days’ work without proper authority for thus doing it. The same objection was raised in Matter of Robbins, 82 N. Y. 131, and in Matter of Emigrant Industrial Sav. Bank, 75 id. 388. In Matter of Hagemeyer, 113 App. Div. 472, it was' held that such a proceeding was authorized to determine whether interest was collectible on each instalment of an assessment from the date of the original levy or from the date when the assessment was due.

But in none of these cases was an attack permitted upon the jurisdictional findings- of the city authorities, that certain physical conditions existed on the ground which rendered an improvement necessary. Before such determination can be made, the charter provides for inspections, for public hearings, for examination of the locality, the making of maps, plans, contracts and the like, and the board of assessors must view the premises and, after full hearing, adjust the matter of assessments and awards. If they omitted any part of the statutory procedure, if they proceeded in the work of levying the assessment upon an improper basis, I concede that section 9-59 affords a remedy to the property owner. But it seems- to me that when these duly authorized officials, having complied with the requirements of the charter, determine that there is an established grade and there is necessity for altering it, and when they go on and do the work and the assessment is regularly levied and awards made, the property *39owner cannot come before the court alleging that there was “ substantial error ” because there was no established grade and that therefore no change of grade was necessary. The work has been done, the improvement has been made, and it seems to me in the first place impracticable, and in the next place contrary to law, for the court to interfere. Matter of Munn, 165 N. Y. 149; Matter of Shaffer, supra, and cases cited.

2, Belmont avenue, formerly Bay avenue, was an old highway in the town of New Lots. It was laid out and traveled upon for many years prior to annexation, at least as early as 1863. It certainly had some grade, whether legally established, or by official action of the old town. In 1885 the commissioners of the town of New Lots established a grade for Bay.avenue. But the petitioners say that the street remained in its unimproved condition, until the improvement which is the subject of the assessment under consideration was made in 1913, and it is claimed that the work done in 1913 was to bring the street to the grade laid out by the town commissioners in 1885. But the evidence falls short of proving the fact that there was no established grade. 'The clerks and draughtsmen called from the, city departments had no personal knowledge on the subject. One of the two witnesses examined for the petitioners, a lady who had resided in the locality for many years, says the old road was unimproved, no sidewalks or curbs, that pedestrians went down in the mud to their ankles; but all this might be true, and yet there might have been an established grade upon the street under section 951, cited. We have a road used and traveled upon for fifty years, with houses built along the highway, we have a resolution of the former town establishing a grade in 1885, we have the determination of the officials of the city of New York made after hearings and examination of the property, and *40all this is attempted to be nullified by the testimony of one witness that there was no pavement, curb, or flagging.

I think this is entirely insufficient to warrant the court in interfering with the action of the city authorities.

The danger of extending the application of section 959, in matters of this kind, to prior findings of the city authorities, is manifest. The amount involved here is small, but if all public improvements in the city of New York are to be subjected to summary review under section 959 in questions not involving the manner in which the work was performed or the assessment levied, not involving any charge of fraud or misconduct on the part of the city officials, but solely questioning their determination of existing physical conditions, it is a very radical departure from the established policy of the courts. I think it would be an infringement by the courts upon the legislative prerogatives of the municipal government. The applications are therefore denied.

Applications denied.