In the Matter of Churchill

82 N.Y. 288 | NY | 1880

The petitioner was assessed for the regulating and grading of Seventy-sixth street, for two lots situated on said street, between First avenue and avenue A. A space marked on the map annexed to the assessment as avenue B, to the depth of one hundred feet, crossing said street at right angles, was omitted from being assessed upon the assessment roll. It is claimed that this space had been closed as a public street, stricken from the map, and was subject to assessment, and that the omission to assess the same rendered the entire assessment illegal and void. The principle that all property within the limits of the territory to be assessed shall be assessed, and that the omission of a part vitiates the whole assessment, is well established. (Hassan v. City of Rochester, 67 N.Y. 528; In reProt. Epis. School, 75 id. 324.) In order, however, to apply this principle, it must be made to appear that the property omitted was liable to assessment. In making the assessment the assessors must follow the valuation made by the commissioners of taxes, and the board of assessors have no power either to make or to correct such valuation. (Chap. 302, Laws of 1859.) This valuation by the tax assessing officers is a prerequisite to a valid assessment. (In re Second Ave. Meth. Church, 66 N.Y. 395.) Avenue B, constituting the space referred to, by an act of the legislature in 1875, was closed, and the evidence shows that this land was divided between two blocks, and one portion was valued with one lot in one sum and as one parcel, and the other portion assessed and valued with another lot, and as appears from the books and maps containing assessments for the year 1876. This assessment was made previous to January, 1876, but the valuation was subject to correction, and did not become effective until the 1st of May following, when the time to apply to the tax commissioners for correction expired. (Chap. 302, Laws of 1859, § 8; In re Schell,76 N.Y. 432.)

The assessment for the improvement in question was made previous to January, 1876, and it being shown by the secretary of the board of assessments that the space in question was not designated on the tax map of the city, which was before the board, as property; that the property was not designated by ward, block and number; and it appearing that there was no lawful valuation when the board of assessors acted, they had no power to make the valuation of such space or to assess the same. Nor do we think that the assessors were under any legal obligation to suspend their proceedings until the new assessment-roll became operative.

Independent of the consideration suggested, it is a sufficient answer to the application of the petitioner, that it does not appear from the record before us that he was assessed for paving the street along avenue B, or the cost thereof entered into the assessment actually made.

The order appealed from should be affirmed.

All concur.

Order affirmed.