In re City of New York

| N.Y. App. Div. | Apr 12, 1912

Scott, J.:

Although the appeal is from the whole order, the appellant confined itself to a discussion of so much of the order as refuses to confirm the report of the commissioner of assessment and refers the assessment for benefit back for revision and correction. We, therefore, shall consider only that feature of the order.

The proceeding is for the widening of Muscoota street or West Two Hundred and Twenty-fifth street from 60 to 100 feet, extending from Broadway easterly to the line dividing the borough of Manhattan from the borough of the Bronx. The total cost of the proceeding, confirmed by the order appealed from, is $66,125.98, of which thirteen per cent, oils,596.38, is. assessed upon and borne by the city of New York pursuant to a resolution adopted by the board of estimate and apportionment. The area of assessment was fixed by said board of estimate and apportionment, and embraces many lots, some in the borough of Manhattan and some in the borough of the Bronx, besides those owned by the respondents-in this proceeding. Section 980 of the Greater New York charter^* provides that “The commissioner of assessment shall in making his estimate and assessment of the value of the benefit and advantage of the said improvement, assess any and all such lands, tenements, hereditaments and premises within the area of assessment fixed and prescribed by the hoard of estimate and apportionment, as' the area of -assessment for benefit, in proportion to the amount of benefit received.”

The problem presented to the commissioner of assessment, therefore, was to distribute the sum of $57,529.60 over the lands within the assessment area in proportion to the benefit received. He had no authority to reduce the amount to be assessed or to increase the area of assessment. • He was bound to assume that every separate parcel of property within the assessment area derived some benefit from the improvement for the board of estimate and apportionment had so determined, and the commissioner was without authority to modify such determination. (Hassen v. City of Rochester, 65 N.Y. 516" court="NY" date_filed="1875-06-05" href="https://app.midpage.ai/document/hassen-v--city-of-rochester-3589555?utm_source=webapp" opinion_id="3589555">65 N. Y. 516; 67 id. 528.)

It is quite beside the mark, therefore, to pick out, as the respondents do, one or two lots within the assessment area, and to contend that the assessments levied upon them exceed the actual benefit which will accrue to the lots from the improvement. That may be quite true and yet the assessment may have been lawfully and equitably laid. The propriety of the distribution of the assessment could only be tested by a comparison of all the assessments within the assessment area with the benefit to accrue to each lot.

Even if the papers on appeal contained the necessary data to make such a comparison (which they do not), it would require a very strong case of an abuse of discretion or of manifest error to justify interference by the court. (Matter of Mayor [East 176th St.], 85 A.D. 347" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/in-re-mayor-of-new-york-5193689?utm_source=webapp" opinion_id="5193689">85 App. Div. 347; Matter of City of New York [Clinton Avenue], 106 id. 31.)

The order appealed from in so far as it denies the motion for the confirmation "of the report of the commissioner of assessment must, therefore, be reversed, with ten dollars costs and disbursements, and the report confirmed.

Ingraham, P. J., Laughlin, Olarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to the extent stated in opinion, and report confirmed. Order to be settled on notice.

* See Laws of 1901, chap. 466, § 980, as amd. by Laws of 1906, chap. 658; since amd. by Laws of 1909, chap. 394.— [Rep.