The relators, appellants upon this appeal, were the owners of property upon Vernon avenue and Newtown creek at the time when a new bridge was constructed by the city over the creek. The approach to the old bridge was raised about four feet above Vernon avenue; but that to the new bridge consisted in a steel viaduct, about twenty-two feet above the roadway and about 1,050 feet in length. The new bridge was completed in 1905 and these relators presented to the board of assessors of the city of New York a claim for damages, as owners *Page 310 of the lands and buildings abutting upon Vernon avenue. This claim was made under the provisions of chapter 582 of the Laws of 1905, which had been enacted with relation to any claims based upon the effect of the new construction. The board gave a hearing upon the claim and made an award of $15,000. This was not satisfactory to the relators, who sued out a writ of certiorari to review the determination of the board; alleging the inadequacy of the award upon the evidence of damage. The Appellate Division, in the second judicial department, before which court the matter came on to be heard, dismissed the writ; as matter of law and not of discretion. It was considered by that learned court that the determination of the board of assessors was not the subject of review by the courts; inasmuch as the statute did not cast upon that body "the discharge of a judicial duty." The question, therefore, which this appeal, alone, presents, is whether the proceeding before the board was of that judicial character, which rendered the determination reached reviewable by writ of certiorari, and, in order to ascertain that, the language of the statute must be resorted to and not those general principles, which pertain to the procedure of tribunals of a judicial, or quasi judicial, nature. (Matter of Fitch, 147 N.Y. 334, 337.) Section 1 of the act reads 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 *Page 311 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." The second section provides that the amount of such award, 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," etc. It will be observed that the act makes no direction for a hearing, or as to the form, or method, of the inquiry by the board and it makes no provision for any review, or appeal, from a determination.
The relators not having suffered from any actual invasion, or taking, of their lands, had no enforcible claim against the municipality for any damage resulting from the change of the grade of the street. Their ownership was subject to the public right to make the change, when deemed a necessary improvement of the street. (Sauer v. City of N.Y., 180 N.Y. 27.) In passing the act in question, the legislature recognized, at most, a moral obligation to make compensation, if injury had, in fact, resulted, and, in enacting upon the subject, it was, exclusively, for the legislature to provide by whom, to what extent and in what manner an award of compensation should be made. This may not be likened to a case, where the statute has clothed a body with authority to do an act, which concerns and affects the legal rights of a person. In such a case, though the language of an enactment may be permissive, it will be construed as imperative and the performance of the duty enjoined becomes judicial in its nature, when involving a hearing and determination upon a question of the person's property rights. (Mayor, etc., of N.Y. v. Furze, 3 Hill, 612.) But, in this case, the relators had no rights, which the law recognized. When the legislature enacted this statute, it gave to them the right to prefer this claim for damages. *Page 312 By it they acquired no right to any damages; they obtained, exgratia, the appointment of a body, which might consider their claim to be entitled to damages and might act upon it. The legislature chose to commit the whole matter to the "discretion" of the board of assessors and that discretion extended to considering the claim and to making a determination upon it. The board was "authorized and empowered in its discretion to estimate and determine the damages," which the owners of lands have suffered, or will suffer. If that body made an award, it was to "certify the same to the comptroller," less the amount of any consequential damages, which commissioners of estimate may have allowed, and the city was directed to pay it. The amount of the award was not to be included in any assessment upon lands benefited; it was to be paid by the city at large. How, in view of the language of this act, can it be said that any inquiry of a judicial nature was prescribed, or authorized, even, by the legislature? The evident intent of the enactment is that the board of assessors should exercise their discretion, when a claim was presented, whether to consider it and at what amount to estimate it. It must have been in contemplation that the inquiry, as a discretionary one, would be informal; for the act is bare of directions as to the inquiry, or mode of procedure.
In Matter of Fitch, (supra), a review by certiorari of the determination of commissioners appointed to estimate the damages of abutting owners, resulting from changes of grades of streets, in the city of New York, was upheld upon the language of chapter 567 of the Laws of 1894, in question there. The particular language under consideration was that conferring "exclusive jurisdiction to estimate the loss and damage" upon the commissioners and it was argued that, thereby, their award was not subject to review. It was decided that, under the act, this language, while giving exclusive jurisdiction to estimate the loss, must be considered in connection with *Page 313 other requirements as to procedure. The act provided that it should be the duty of the commissioners "to inquire into the facts or circumstances relating to any claim * * * 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 * * * as shall be under the circumstances, and on the evidence presented, just and equitable," etc. These requirements of the act were deemed to be significant and exclusiveness of jurisdiction, therefore, related only to the power to estimate. In People ex rel. Heiser v.Gilon, (121 N.Y. 551), the board of assessors were directed to assess upon the property intended to be benefited by the regulating and grading of Eighth avenue, in the city of New York, the amount of damage sustained by the abutting landowners, by reason of changes of grades, and they were to make awards of such damages; which awards were to be included in those expenses of regulating and grading that were to be assessed. The board failed to give notice of a hearing to the owners of property damaged by changes of grade and that was held to invalidate the proceeding. The duties devolved upon the board were held to have been judicial in their nature and, for their proper performance, required the giving of an opportunity to be heard. The statute in that case differed in essential particulars. The matter of awarding damages to claimants was not committed, solely, to the discretion of the board. Then, again, it was not committed as a single matter for their action; but it was a part of a plan of procedure, by which, in assessing property for the expense of street improvement, awards for damages should be made and their awards included in the assessment. Obviously, as I think, the proceeding was, throughout, of a judicial nature and cannot be likened to the present one. In this case, of course, there was no question as to full opportunity to be heard. In *Page 314 the case of People ex rel. Stephens v. Phillips, (88 App. Div. 560), in considering an act similar to the one now under consideration, in its committing the matter of awarding damages to the "discretion" of the board, the Appellate Division, in the first department, held that the action of the assessors was not subject to review by certiorari.
I think that, in authorizing and empowering the board "in its discretion to estimate and determine the damage," the legislature made its determination conclusive; whether that determination was to refuse to consider a claim, or whether it was one fixing the amount of an award.
I think the order appealed from should be affirmed, with costs.