235 A.D. 566 | N.Y. App. Div. | 1932
Lead Opinion
Water district No. 3 of the town of Niskayuna was established by the town board pursuant to the provisions of article 13 of the Town Law. Section 290-a thereof provides that a petition requesting the establishment of such district “ may contain a statement that the cost of construction of the water system * * * therein described * * * shall be assessed from year to year by the water commissioners of the water district * * * in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom.” Said section also provides that if the petition contains such statement, then the amount to be raised for the payment of principal and interest on the bonds
On July 31, 1929, the secretary of the water board notified the town board that at a regular meeting of the water commissioners the following budget was approved:
“ Interest on bonds............................. $7,315 00
General expenses: Salaries, pump house employees,
1929 and 1930.............................. 1,550 00
Salaries, commissioners........................ 1,000 00
Insurance.................................... 75 00
Commissioners’ bonds......................... 15 00
Heat, light and power, 1929 and 1930............ 3,000 00
General maintenance.......................... 500 00
Postage, stationery and printing...............70 00
$13,525 00”
By written notice dated August 29, 1929, the town clerk notified the board of water commissioners that at a meeting of the town board held on said 29th day of August, 1929, the town board approved the amount of $13,525 as the amount due for interest on bonds and other general expenses as outlined in said budget, the notice then stating: “ You are to proceed forthwith to assess such amount on lands within such Water Dist. No. 3 * * * in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom.”
The statement of facts printed in the record sets forth that certain affidavits were read by the respondent on the argument of the appeal before the County Court, to which affidavits appellants objected as not properly before the court, and on the ground that the return made by the town clerk could not be supplemented on
Appellants object to the assessment on three grounds which will be separately discussed in order inverse to that in which they appear iii the brief.
They assert that they are not assessable in any event because they derive no benefit from the water system, having an adequate water supply of their own. The appellants did not sign the petition for the establishment of the water district. The town board having established the district embracing the property of the appellants, has determined that benefits accrue to the appellants. The determination of such question is ordinarily one of fact. That the appellants have an adequate water supply of their own does not necessarily establish that no benefits accrue to them from the establishment of the water district. The matter of additional fire protection from the water district is but one of many facts showing benefits derived. (See Matter of Syracuse, Binghamton & New York R. R. Co. v. Van Amburgh, 223 App. Div. 485; affd., on opinion below, 251 N. Y. 548; People ex rel. Zerega v. Markvart, 230 App. Div. 767; Matter of City of New York [Juniper Ave.], 233 N. Y. 387; Hassan v. City of Rochester, 67 id. 529; 65 id. 516; Matter of City of New York [225th St.], 150 App. Div. 223.)
Appellants also object to the assessment in proportion to foot frontage, and assert that this has resulted in injustice to them and that this method has no relation to the relative benefit derived by the various properties in the district. It is not disputed that such is the rule adopted in making the assessment.
By section 290-a of the law which requires the assessment to be made in proportion to benefits, a wider discretion is permitted the assessing officials as to the method of the apportionment. Instead of being limited to making the apportionment according to the valuation of the properties, the officials are permitted and required to adopt the particular method which, in their judgment, will distribute the amount to be raised in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom.
We do not now decide whether or not the front foot rule adopted by the assessors was proper under the circumstances for the reason that we are unable to determine from the facts in the record whether or not the assessment equitably apportions the benefits. (See Matter of New York City [225th St.], 150 App. Div. 223.)
It appearing by the sections above referred to that interest and principal upon the bonds, for the construction of the system, are the only items properly assessable against the properties within the district according to benefits derived, the assessment in so far as it includes items in the budget amounting to $6,210, for expenses other than interest on bonds, is unauthorized and illegal.
The assessment is, therefore, void, and for this reason the order
The order appealed from should be reversed on the law and the facts, with costs to appellant.
All concur; McNamee, J., with a memorandum.
Concurrence Opinion
I concur for reversal. I believe the apportion-
ment to be erroneous, unequal and inequitable, and, for those reasons, that a reapportionment should be made by commissioners to be appointed by the court pursuant to sections 239 and 240 of the Town Law.
Order reversed on the law and the facts, with costs, and matter remitted with directions to proceed in accordance with opinion.
