Majority
p. 604(68 Hun, 158.) In re ONE HUNDRED AND SIXTY-SEVENTH ST. MAYOR, ETC., OF CITY OF NEW YORK v. TIFFANY et al. (Supreme Court, General Term, First Department. March 17, 1893.) Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
Headnote
Opening Streets—Assessment op Property Benepited.Where three unconnected sections of a street are opened, each of which is less than a mile in length, but more than a mile in the aggregate, and each section is called “167th Street,” but there is no evidence that the city intends to connect the sections by opening the street from one section to another, such sections are separate streets, and the entire cost of each is chargeable on the property benefited; Laws 1882, c. 410, (Consolidation Act,) §§ 677, 958, providing that, where a street more than a mile long is opened, half the cost shall be paid by the city, but, if it is less than a mile long, the entire cost is to be assessed on the property benefited.
Appeal from special term, New York-county.
Application of the board of street opening and improvement of the city of New York, ior and on behalf of the mayor, aldermen, and commonalty of the city of New York, relative to East 167th street,- although not yet named by proper authority, from the westerly side of Prospect avenue to Westchester avenue, in the Twenty-Third ward of the city of New York. From an order entered on the 6th of January, 1893, confirming the report of the commissioners of estimate and assessment, Lyman Tiffany and Edward Wood, as trustees under the last will and testament of Charlotte L. Pox, deceased, Richard W. Stevenson, trustee under the last will and testament of Mary P. Tucker, deceased, Henry D. Tiffány, as trustee under the last will and testament of Isabel I. Perry, deceased, Henry D. Tiffany and Lyman Tiffany, individually, owners of the lands assessed, appeal.
Affirmed.
Truman H. Baldwin, for appellants, property owners.
William H." Clark, (John P. Dunn and Matthew P. Ryan, of counsel,) for respondents, mayor, etc.
Property benefited by the opening of streets, not more than one mile in length, in the Twenty-Third and Twenty-Fourth wards, may be assessed to the extent of the benefits conferred for the purpose of paying the cost of laying them out; but, in case the streets laid out are more than a mile in length, not more than one half of their cost can be assessed upon property benefited, and the city is liable for the remainder. Consolidation Act, (Laws 1882, c. 410, §§ 677-958.) In 1871 the commissioners of Morrisania filed a map showing a continuous street, now known as 167th street, Which was more than a mile in length, and extended from Westchester avenue, on the east, to Jerome avenue, on the west. From Westchester avenue to Prospect avenue the distance is 2,945 feet; from Prospect avenue to Boston avenue the distance is 1,554 feet; from Boston avenue to Clay avenue the distance is 2,130 feet; from Clay avenue to Sheridan avenue is 2,230 feet; from Sheridan avenue to Jerome avenue is'1,520 feet. From Westchester avenue to Prospect avenue the street has
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been legally laid out; from Prospect avenue to Boston avenue a street was once opened, but has been discontinued; from Boston avenue to Clay avenue a street has been laid out, and is known as a portion of 167th street; from Clay avenue to Sheridan avenue there.is no existing street; from Sheridan avenue to Jerome avenue a street has been laid out, and is known as part of 167th street. The distance between Westchester avenue, on the east, and Jerome avenue, on the west, by the line of the street, as shown on the old map, is about 10,429 feet. The aggregate length of the three sections of the street legally laid out is 6,595 feet, or 1,315 feet more than one mile. February 19, 1892, commissioners were appointed to assess the damages and benefits to the property caused by opening a street from Westchester avenue to Prospect avenue,—a distance, as before stated, of 2,945 feet. The assessment was made upon the basis that the proposed street was less than one mile in length, and that all, instead of one half, of its cost, was to be borne by, and was assessed upon, the property benefited. There is no evidence in the case that the city proposes to unite the three sections of streets known as 167th street so as to make a continuous street from Westchester to Jerome avenue, nor is there any evidence that the city intends to lay or continue a street between Prospect and Boston avenues, or between Clay and Sheridan avenues, so that any two of the sections of the street known as 167th street will be united and form a street more than a mile in length. Mr. Grieffenberg, an assistant topographical engineer of the street department, who was the only witness examined, testified that 167th street was originally laid out from Prospect to Boston avenue, but that it had been discontinued and canceled from the map, and forms no part of 167th street. It was discontinued February 14, 1889. This evidence was not disputed. The fact that the three unconnected sections or streets are known as 167th, and aggregate more than one mile in length, does not require that one half the cost of opening the east section or street be assessed on the city. Each of these sections or streets was opened on different dates, and each is a perfect street of itself, commencing and terminating at avenues. Neither is a cul de sac. There is no physical connection between these sections or streets, nor does it appear that a union is contemplated or practical, and there is no connection between them except the name. Had one of these, sections been called Gold street, another Silver street, and the part involved in these proceedings 167th street, it would not, we think, have been asserted that 167th street was, by reason of the existence of Gold and Silver streets, more than one mile in length, even though it had been originally contemplated that they should form a continuous street, bearing the same name. The section of the statute relating to the assessment of damages has reference to the length of the street as laid out. If, as opened, it is less than one mile in length, and is of itself a perfect street, the property owners must bear the whole burden, even though it was originally designed by the street department to be much longer.
The order should be affirmed, with costs. All concur.