In re the Opening of Emmons Avenue — 17 N.Y. St. Rep. 722

Majority

p. 722

In the Matter of the Opening of Emmons Avenue, etc.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Street opening—Assessment by commissioners—When disturbed by APPELLATE COURT.

Where commissioners appointed to open a street have complied with the law and made their assessment, and their report has been confirmed by the court, the appellate court will seldom disturb the amount assessed upon land within the prescribed assessment district, except where there has been some misapprehension or misconduct or the adoption of some improper rule of law in fixing that amount.

Appeal by John G-. Schumaker from an order of the-Kings county special term, confirming the report of commissioners appointed in the above entitled proceedings.

John G. Schumaker, appellant in person; Cornelius Furgueson, Jr., for resp’t.

This was a proceeding to open a street laid out by a town survey commission of 1867, under an act of the legislature delegating certain powers to the board of supervisors. Under that law the board fixes the district of assessment, after which commissioners are appointed by the supreme court, who are required to view the premises, examine the grounds, hold public meetings and fix the-assessment of each piece of property within the assessment-district so prescribed by .the board of supervisors.

Then by the same law the commissioners present their report to the court for confirmation. They are not required to take testimony, but parties desiring to object to the report must file written statements of such objections with the statement of the manner in which such report should be corrected, and on such papers the court decides the motion for confirmation of their report.

That law was complied with in this proceeding. The commissioners heard all the parties, and made their assessment, and their report was noticed for confirmation. It was opposed by the appellants, but was confirmed by the court, and this appeal is taken from such confirmation.

The appellant raises an objection to the jurisdiction of the commissioners over his land, but as the same was included within the assessment district prescribed by the board of supervisors, the objection cannot be sustained.

The other objections to the report related to the amount of the assessment against the property of. the appellant, and also the property of another owner, but the amount of assessments in cases like the present are so clearly and peculiarly within the jurisdiction and control of the commissioners, who view the premises and obtain information in various ways, which is not laid before the appellate tribu

p. 723

nal, that such conclusions are seldom disturbed, except when it appears that there has been some misapprehension or misconduct, or the adoption of some improper rule of law.

The order appealed from should therefore be affirmed, with ten dollars costs.

Barnard, P. J., and Pratt, J., concur.