111 N.Y.S. 334 | N.Y. App. Div. | 1908
This is an appeal by the city of Hew York from so much of an order of the Special Term confirming the final report of commissioners of estimate and assessment as to awards for land taken as denies the motion to confirm said report as to assessments for benefit and remitting the proceedings to the commissioners for revision and correction in respect to such assessments.
The object of the proceeding was to acquire the title to the real estate that now constitutes the bed of Spofford avenue between Longwood avenue and the Bronx river in the twenty-third ward in the borough of The Bronx in the city of Hew York. On Hovember 12, 1901, the commissioners of estimate and assessment filed their preliminary abstract of estimate and assessment. By that preliminary abstract the cost of the proceeding was assessed upon the property deemed to be benefited thereby, and the commissioners assessed upon the property belonging to one of the respondents, Boehm, in that behalf the sum of $3,943.29. Subsequently, on December 30, 1901, the prior resolutions- of the board of street opening and improvement of the former city that had directed the assessment of the entire cost and expense of the proceeding to be placed upon the property deemed to be benefited thereby, were amended by a resolution of the board of public improvements of the city of Hew York so as to impose forty per centum of such cost and expense upon the city, and the remaining sixty per centum alone upon the property so benefited.
Before the commissioners, however, had revised their preliminary assessments, in accordance with the resolution imposing forty per cent of the cost of the improvement upon the city, this court, in Matter of Grant Avenue (76 App. Div. 87), expressed the view that the proper method of assessing the cost of taking land for street purposes in Hew York city is to assess the cost of each block taken upon the property fronting thereon.
The commissioners, deeming that they were governed by that rule in the proceeding at bar, recast their assessments so that in lieu of assessing each parcel benefited in proportion to the benefit that it had actually received from the entire improvement, the cost of each separate block of land condemned in the proceeding was assessed upon the property alone that fronted thereon.
The method of procedure was described in the testimony of the computer for the commissioners as follows: “ In the first place, it was necessary to ascertain how much money it was required to raise on each'block in accordance with the rule laid down in Grant Avenue and Townsend Avenue decisions; * * * that is to say, taking the lot 25 by 100 feet, I would say that in the first place it was ascertained how much money would have to be raised by assessment on each block, extending from the improvement to the limit of the area on each side of the street. * * * In the original report a uniform rate of assessment was placed on each lot abutting on the improvement. * * * That uniform ratio or rate extended all the way from Tiffany Street to the Bronx Biver, on both sides of the improvement. * *• * After the decision in the Grant Avenue, * * * we ascertained the amount of money to be raised by assessment in each block. * * * Starting now with Tiffany Street, in the blocks from Tiffahy Street to Barretto Street, the assessments on the lots abutting on the improvement between Tiffany Street and Barretto Street were increased 79.4 per cent, on both sides of the improvement; the assessments on abutting lots from Barretto Street to Manida Street were increased .87 per cent; * * * from Manida Street to Coster Street, the assessments were increased 40.8 per cent on both sides of the improvement ; from Coster Street to Hunt’s Point road, the assessments
Before and at the time of the condemnation of Spofford avenue between Longwood avenue and the Bronx river, as condemned in this proceeding, the entire territory embracing the land taken and the land assessed for benefit in this proceeding was intersected by an old highway known as Hunt’s Point road. The territory lying to the east of that intersecting highway was interior land to which there was no access. The territory situated on the westerly side of that highway, including the property of the respondents assessed for benefit herein, already fronted on a street that was opened, regulated, graded and macadamized, fifty feet in width, and entirely adequate to the needs of the neighborhood. According to the testimony the easterly territory was benefited 100 per centum; the westerly to the extent merely of one-ninth of its former value.
The result demonstrates that the commissioners misapplied the Qrcrnt Avenue case, which it is evident they intended to follow, by
The proceeding at bar presents the circumstances there referred to which require resort to a different rule. It is obvious that territory which, before the new street is open, has no access is benefited to a greater proportional extent than territory situate on an established, improved and macadamized street fifty feet in width by the mere widening thereof.
The order appealed from, remitting the report to the commissioners to the end that each parcel may be assessed the proportional share of the benefit sustained, without regard to the so-called block to block rule, is right and should be affirmed, with costs and disbursements to the respondents.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.