175 A.D. 864 | N.Y. App. Div. | 1916
The learned counsel for the appellant contends here, as he did at Special Term unsuccessfully, that part of the lands acquired by this proceeding was acquired for approaches to the bridge over the tracks of the Harlem River and Port Chester Railroad Company, which are leased by the New York, New Haven and Hartford Railroad Company. We are of opinion that the learned court at Special Term correctly disposed of the contentions made in behalf of the appellant with respect to said-lands having been so acquired. (Matter of City of New York [Rosedale Ave., etc.], N. Y. L. J. Dec. 9, 1915.)
We are of opinion, however, that the other point raised by counsel for the appellant requires a modification of the order. The court found that the commissioner of assessment had not followed the statutory requirements, and, therefore, sustained certain objections to his supplemental and amended report, and the original commissioner of assessment having died, remitted the question of assessments to another commissioner, with instructions to levy the same in accordance with the opinion of the court. That would require the commissioner to include in the assessment the gross amount of costs and expenses taxed herein at five different stages of the proceeding. This proceeding was instituted pursuant to a resolution of the board of estimate and apportionment adopted on the 14th day of June, 190Y, for the purpose of acquiring title to lands, tenements and hereditaments required for the opening and extending of Rosedale avenue, Commonwealth avenue and St. Lawrence avenue, between Westchester avenue and West Farms road (Walker avenue) and
It is manifest that the lands within the area of assessment, as modified when the width of Rosedale avenue was changed, should be assessed only for the actual costs and expenses of the proceeding as modified by the elimination of the other avenues and the change in the width of Rosedale avenue. There is no express evidence in the record with respect to the costs and expenses incurred before such modifications that were rendered valueless to the property within the new area of assessment owing to such modifications ; but there is a recital in the record of a statement made by the commissioner of assessment before the commissioners of estimate, of which he was one, to the effect that the costs and expenses theretofore incurred which were rendered useless by the modifications of the proceeding amounted to from $8,000 to $10,000. The original resolution of the board of estimate and apportionment provided that eight per cent of the costs and expenses of opening Rosedale avenue should be borne by the city. When the width of Rosedale avenue was changed this resolution requiring that eight per cent of the costs and expenses be borne by the city was not rescinded. The eight per cent aggregated $11,427.83. The appeal was submitted, and with the record there was submitted by the respondent city an affidavit made by the assistant secretary of the board of estimate and apportionment which it is claimed shows that the resolution providing that eight per cent of the costs and expenses should be borne by the city was adopted pursuant to a rule of the board under which part of such costs and expenses should be borne by the city where the street or avenue to be acquired was of greater width than sixty feet. That affidavit can be given no force or effect, for the reason that it was competent for the board to require that the city should bear part of the costs and expenses of the proceeding regardless of the width of the street or avenue. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 980, as
We are of opinion, therefore, that the order should be modified by requiring that the costs and expensés of this proceeding be retaxed pursuant to the provisions of section 999 of the
Clarke, P. J., McLaughlin, Dowling and Davis, JJ., concurred.
Order modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice. .
Now § 972, as added by Laws of 1915, chap. 606. See Laws of 1915, chap. 606, § 3. —[Rep.
Now § 980, as added by Laws of 1915, chap. 606. See Laws of 1915, chap. 606, § 3.—[Rep.