[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 303
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 304 The question presented by this appeal is whether the Appellate Division had power to review the amount of the award in question. The award rests wholly on the act of 1905, because damages arising from a change of grade in a public highway cannot be recovered at common law. (Radcliff's Exrs. v. Mayor, etc., ofBrooklyn, 4 N.Y. 195.) The legislature, however, has power to recognize claims founded on a moral obligation and it exercised the power in passing said act. (People ex rel. Central TrustCo. v. Prendergast, 202 N.Y. 188.) It did not make a gift to the landowners but acting upon the appeal to the conscience of the state "authorized and empowered" the board of assessors of the city of New York, "in its discretion to estimate and determine the damage" sustained by reason of the construction of the bridge. The meaning of the words "in its discretion" as used in the statute is so doubtful as to require construction.
The learned Appellate Division was of the opinion that owing to those words the statute did not involve the discharge of a judicial duty by the board of assessors and that in estimating the damages there was no rule to be followed other than the principle of good conscience and good morals which brought them into being. (146 App. Div. 440.)
During the hearing which took place before the board of assessors evidence was given in behalf of the relators tending to show that the damages sustained amounted *Page 306 to upwards of $60,000, while evidence was given in behalf of the city tending to show that the damages were at least the sum of $29,471. That was the lowest estimate made by any witness on either side. The amount of the award as made was $15,000. It is obvious that if the assessors acted judicially a question was presented for determination by the Appellate Division in relation to the amount of the award. If, on the other hand, as claimed by the respondents, the discretion of the board as to the amount of damages was so absolute that it could disregard the evidence and arbitrarily fix a sum without any evidence to support it or to award one owner generous if not excessive compensation and another no compensation at all, then they did not act judicially, and no question was presented for review.
The statute should receive a reasonable construction, so as to give effect to the object of the legislature, and if the meaning is doubtful, such a construction, if possible, as will not lead to unreasonable results. (East v. Brooklyn Heights R.R. Co.,195 N.Y. 409.) Its object was to convert a moral obligation into a legal or equitable right, subject, however, to a discretion of some kind to be exercised by the board authorized and empowered to estimate and determine the damages. What was that discretion? I think that the statute clothed the board of assessors with power to act or not "in its discretion," and that its discretion extended no further. The legislature, apparently, was in doubt whether the claims should be considered at all, so it did not require the board to pass upon them, but authorized it to take them up in its discretion. If, upon considering the subject, the assessors thought the damages were so substantial as to call for compensation, they were empowered to estimate and determine the amount, while if they were so slight as to be unworthy of consideration by reasonable and experienced men, they could exercise their discretion by refusing to consider them. This was a *Page 307 wide discretion, but not altogether unwise, as the assessors could tell better than the legislature whether action on the claims was called for. It did not throw the door wide open to arbitrary action whereby absurd and unjust awards could be made, giving to one owner nothing and to another an excessive amount, although the claims were of equal merit. Authority to decide whether the claims had general merit enough to make it worth while to assume jurisdiction of the subject of damages is quite different from power to reward friends and punish enemies by dealing out the money of the city in unlimited discretion without the guide of evidence or law. The power of the legislature to delegate its authority is as open to objection on the one theory as the other, for an absolute discretion as to amount gives power to award nothing on a claim with merit and a substantial sum on a claim without merit. This question, however, was not raised and cannot be considered upon this appeal, which involves simply the right of the Appellate Division to review the amount of the award. I think the discretion applied to the taking up of the claims and not to the amount of damages in case they were passed upon at all. The language used not only admits of this construction, but, as used, it is the more logical because the word "discretion" is directly connected with the words "estimate" and "determine," and only remotely with the word "damage." The board was authorized "in its discretion to estimate," not to estimate the damage in or according to its discretion. As thus construed the statute is not without precedent in legislation.
The board, therefore, had power to take up the claims or not, in its discretion, and if it had refused, the landowners would have been without remedy, as the discretion expressly given to the assessors would have excluded review by the courts. The claims, however, were in fact taken up and thus the question arises whether the action of the assessors in making awards was judicial in its *Page 308 nature. While neither notice nor hearing was expressly required by the statute, I think that both were required by implication from the nature of the duty to make an award of damages and the established practice in such matters which the legislature is presumed to have had in mind and in the light of which it passed the act. (People ex rel. Heiser v. Gilon, 121 N.Y. 551.) A hearing implies evidence and a trial, formal or informal. An award in law means a judgment or finding upon a disputed matter submitted for decision. Even a mere estimate of damages is necessarily in the nature of a judicial act, for it requires the finding of a fact through the exercise of judgment upon evidence of some kind. The duty to "find as matter of fact" the sum already allowed for consequential damages, if any, and to deduct it from their award indicates that the assessors were also to find as matter of fact the net amount of damages sustained. It was not the intention of the legislature that they should act judicially as to part of their duties only.
We recently had before us a similar statute, which authorized an award but was silent as to the procedure, neither notice nor hearing being expressly required in estimating the damages. (L. 1872, ch. 729.) After the damages were awarded, however, they were to be assessed upon the property benefited according to the provisions of another statute, which required notice and a hearing. (L. 1882, ch. 410, § 871.) We held that "there were two distinct and separate proceedings before the board, the result of which is expressed in two papers, namely, the certificate of award as to the damages, and the assessment list as to the expenses and benefits." All the judges united in saying: "After the damages to the property owners had been ascertained, then the assessors were to proceed in assessing them upon the property benefited, according to the procedure prescribed" by another act. "The statute, however, is silent as to how the assessors were to proceed in ascertaining the damages which the *Page 309 property owners had sustained, and no provision is made for notice to them or for a hearing. The duties which the board was required to perform were essentially judicial in their nature and character. The power and duty to determine the amount of loss or injury, which the owner of real estate had sustained, involved the exercise of judgment and discretion, and the hearing of such proof as the property owners had to offer, and as was pertinent to the inquiry." (People ex rel. Heiser v. Gilon, 121 N.Y. 551,556. See, also, Matter of Fitch, 147 N.Y. 334.)
I think that after the assessors assumed jurisdiction their action was judicial in nature, and, therefore, subject to review by the Appellate Division as to the amount of the damages awarded. While that learned court might not have been bound even by the lowest estimate of any witness called by the city, it was its duty to review the question of fact decided by the assessors as to the amount and to reverse their determination if it was regarded as wrong under all the circumstances. (People ex rel.McAleer v. French, 119 N.Y. 502, 507.) That court refused to review the amount and we cannot correct the error, because jurisdiction in that respect has not been conferred upon us. The order of the Appellate Division should, therefore, be reversed, with costs, and the proceeding remitted to that court with instructions to proceed according to law.