83 N.Y.S. 433 | N.Y. App. Div. | 1903
This is a proceeding instituted by the city authorities to acquire lands for the purpose of opening East One Hundred and Seventy-sixth street from Monroe avenue to Tremont avenue. The usual proceedings were had and the commissioners of estimate and assessr
The court at Special Term sustained two objections to the final report, one interposed by the Christ Congregational Church as to parcel benefit No. 86 on the ground of its exemption under chapter 618 of the Laws of 1896, and the other by William McNabb as to parcel benefit No. 89 on the ground that the assessment against a part of his property was excessive. With respect to the objectioü to the assessment against the church it appeared that pursuant to the resolution of the board of street opening and improvement the title to the lands and property taken in this proceeding vested in the city of New York on November 1, 1897.
Section 1 of chapter 618 of the Laws of 1896 reads as follows:
“ The real estate owned by any religious corporation actually dedicated and used by such corporation exclusively as a place of public worship in the twenty-third and twenty-fourth wards of the city of New York shall be exempt from all assessments for public improvements which are now levied and assessed against such real estate, or which may hereafter be levied and assessed against such real estate during three years from January first, eighteen hundred and ninety-six.” To gain the benefit of the exemption contained in this act it was thus necessary for the church to show that the assessment was “ levied and assessed ” within or prior to the period fixed by the act of 1896. The point here is, at what date was the assessment levied and assessed against the church ?
We do not think that the assessment was levied prior to the signing of the preliminary estimates of the commissioners, which was on April 7, 1899; and it is doubtful if it could be regarded as legally assessed and levied prior to the signing of the final report, which was on November 8, 1901. Whichever date, however, we fix upon, it was after the benefit conferred by the act of 1896 had ended, which, by the terms of the act, expired on January 1, 1899. To sustain, the position of the respondent church, therefore, it will be necessary to construe the statute as granting an exemption from
Moreover, the language of the. statute itself will not bear any such 'interpretation, and it will not do, for the purpose of sustaining an exemption from taxation, to depart from the fixed and settled meaning of the language employed in the act. “Taxation is the rule,, with every presumption to support it, while exemption is an exception, with every presumption against' it.” (People ex rel. Metropolitan St. Ry. Co. v. Tax Comrs., 174 N. Y. 448.)
The fact, therefore, that proceedings were instituted. and title to the lands vested in the city during the time when the exemption under the act of 1896 was in force, does not entitle the church property to the benefit of its provisions inasmuch as the assessment was not levied until after the exemption had ceased. We. think, therefore, that the learned Special Term was in error upon the facts here appearing in construing the statute so as to exempt the church property from assessment.
With respect to the property of McNabb, parcel benefit No. 89, it appears that the proposed assessment in the preliminary estimate was $1,994.35, but was reduced'by the commissioners in the final report to $1,256.15. To this latter sum objections' were made and sustained by the Special Term on the ground that it was excessive; but we think that a brief statement of the facts will show that the conclusion thus reached was also erroneous. The property in question is situated on the west side of Glay avenue about 25 feet from the improvement with a frontage of 100 feet on the avenue and a depth on the northerly boundary line of 153.97 feet and on the southerly line of 169.46 feet and contains about six and six-teñths city lots of 2,500 square feet. It was claimed by the objector that the highest expert valuations placed on the property in these proceed
It must be remembered that in determining the amount to be awarded or assessed the commissioners have this advantage over the court in that it is their duty to view the premises, and such duty, it appears in this instance, they performed. It would seem to follow, therefore, that for purposes of comparison as to the relative value of the different parcels involved,'the commissioners were in a much better position to make them than could the court from a mere inspéction of a report. The appellant correctly states the rule established by the cases that authority was given by the Legislature to the commissioners to determine the awards to be made and the damages to be assessed in these proceedings, and unless it is shown that there is an abuse of discretion, or that they were palpably wrong or that there is manifest error, the court should not interfere. (Matter of Brook Avenue, 8 App. Div. 296; Matter of Eager, 46 N. Y. 100; Matter of Cruger, 84 id. 619.)
The fact that the assessment may seem to be excessive is by no means conclusive in the absence of proof directed to establishing it. In the absence, therefore, of evidence to support the claim of M’cNabb that the assessment on this parcel was excessive — and for this purpose we do not think that a comparison with other parcels not shown to have been similarly situated is sufficient — we do not think that the court was justified in interfering with the conclusion reached by the commissioners who viewed the property and who, so far as their report shows, have not exceeded their discretion or committed manifest error.
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Order reversed and report confirmed, with one bill of • costs and disbursements to appellant, tó be paid equally by the respondents.
