In re City of Amsterdam

8 N.Y.S. 234 | N.Y. Sup. Ct. | 1889

Learned, P. J.

The commissioners appointed pursuant to the act,¹ after-determining the amount of the damage sustained by the owners of land taken for the improvement, assessed this amount upon property which they deemed to be benefited. This property was not confined to that which was bounded on the extended streets, but included that which was on other streets, some of which would appear to be quite far distant,—a mile or more, as is said. The learned justice before whom the matter was heard at special term was of the opinion that this assessment could not stand as to the property which was not bounded upon tlae extended streets. He thought, however, that the language of the act could be construed to mean that the damage was to be assessed only on the land bounded on the extended streets. In that view, it might be held that the notices which are required by the act were sufficient to notify these property owners that they would be assessed, and therefore an assessment on them might be held to be valid. The learned justice, therefore, set aside the assessment, and sent the matter back for a new assessment in accordance with his views. We fully concur with him that the assessment should be set aside. But we are of the opinion that a fair construction of the act does not limit the assessment to the property bounded on the extended streets. Considering that not merely street improvements, but the making of sewers and the opening of places, are provided for by this same section, we think that the act intended that the commissioners might extend the assessment as far as, in their sound judgment, the benefits should extend.

Then arises another difficulty. The statute in no respect provides for notice to the persons who are thus to be assessed. Of course, we do not mean that personal notice is necessary; but we understand it to be settled law that some reasonable notice must be given to. the persons to be affected, before an assessment for damages occasioned by such improvements can be made. The notice .that the city proposes to extend such a street does not give the least notice to the person who will be assessed. A man owning property a mile away cannot conjecture that he will be assessed for an improvement which, as he thinks, does not benefit him. The notice published only informs the citizens that the street is to be extended; and, as construed by the city, every owner of property within the city limits must, at his peril, attend, and see that lie is not unjustly assessed. The necessity of notice before such special burden can be imposed was perhaps not as carefully laid down some years ago as it has been more recently, (Stuart v. Palmer, 74 N. Y. 188;) but the doctrine, when suggested, must commend itself as sound. We are of the opinion that there must have been given, in some way, a reasonable notice— not necessarily, perhaps, a personal notice—to the persons on, whose land the commissioners lay this assessment, before the assessment can be laid; and we are clearly of the"opinion that nothing which the act directed, and nothing which was in fact done, constituted such notice. Of course, in such proceedings, a notice not authorized or directed by the act is of no effect to give validity to the assessment. With these views, we affirm that part of the order which set aside the assessment, and reverse that part which sent the matter back for a reassessment. No costs of the appeal.

1 Laws N. Y. 1885, c. 131, § 90.