22 N.Y.S. 27 | N.Y. Sup. Ct. | 1885
The report of the commissioners of estimate and appraisement, so far as matters of fact are involved, is viewed with the same favor as the verdict of a jury. To impeach it, it must affirmatively and clearly be shown to be against the evidence. In re Furman St., 17 Wend. 649; In re John and Cherry Sts., 19 Wend. 659. Here such fact does not appear, and therefore the court will only review the principles or rules upon which the commissioners act.
As to the assessment, I can find no error. The statute limits the district of assessment to the center of the block between the street opened and the street next adjoining thereon, unless the board of improvement determine in its resolution to make the improvement to extend to such district. No such determination was made in this case. The existence of Prospect street, and its adoption on the permanent plan, I think is established. The commissioners, therefore, rightly determined the distance of assessment. The rule adopted by them was to assess the cost of the land taken for each block of the street upon the property fronting upon such block; or, in other words, to make each block pay for the land taken for such block. This rule not only seems to me fair in principle, but has been the one adopted in every street opening that has come under my observation. While it is easy to suggest cases in which it might be inapplicable, I do not see that this case is taken out of the general rule.
The awards to Morran and Tierney are objected to by those owners because the commissioners have allowed no compensation for buildings, or parts thereof, lying within the limits of the street opened by these proceedings. The fact is admitted, and the action of the commissioners is defended on the ground that the act of 1869 (chapter 670) for the appointment of commissioners to lay out a plan for roads and streets in the county of Kings, directs that, if any buildings shall be erected on the line of any avenue or street, as laid out on said plan, after the filing of the map thereof, no compensation shall be paid to the owner thereof upon the opening of the street. If this provision be valid, the action of the commissioners is justified, but the objectors claim that the provision is unconstitutional and void. Provisions similar to the one in question are common. Their validity has been challenged, but the precise point apparently decided in only two reported
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