In re Board of Street Opening & Improvement — 45 N.Y. St. Rep. 828

Majority

p. 828

In the Matter of the Application of The Board of Street Opening & Improvement. In re. Forest Ave.

(Supreme Court, General Term, First Department,

Filed April 14, 1892.)

Headnote

1. Municipal corporations—Assessment for street opening—Laws 1883, chap. 410, § 970.

Under § 970 of the consolidation act the power of the commissioners to levy assessments for the opening of a street is limited to a district comprised between the centre lines of the blocks adjacent thereto, except such damages as might arise from the taking of buildings, and the extension of the district in such case is only for the purpose of making compensation for such buildings.

2. Same.

The total awards in this case were over $10,000, of which only $1,000 was for a building. The commissioners assessed $4,776 on property within half a block of the improvement, and $5,883 upon property outside such district. Held, error.

Appeal from order confirming the report of the commissioners of estimate and assessments in the above entitled matter,

John O. Shaw, for app’lts; John P. Dunn, for resp’ts.

By § 970 of chapter 410 of the Laws of 1882, it is provided that in case of the opening of any street or avenue or portions of any street or avenue in said city, when the street or avenue or portions thereof sought to be opened shall have been laid down' and shown upon any general map or plan made and filed in pursuance with any law of the state of New York relative to the mapping or planning of avenues in said city, where no buildings for which compensation can lawfully be made shall be taken, the assessment district shall not extend beyond the centre line of the blocks adjacent thereto, nor beyond the ends of the street or avenue or portions thereof sought to be opened.

In the case at bar it appeared that the total awards by the commissioners amounted to the sum of over $10,000; of which about $1,000 was an award made for a building, and fifty dollars was an award made for a fence. This amount was distributed by the commissioners over all the property within the area of assessment ; $4,776.65 was assessed upon property within half the block of the improvement upon either side ; and the balance, $5,888.49, was assessed upon the property outside the half of the blocks on either side of the improvement.

This right to extend the limit of assessment was claimed by the commissioners because there was an award made for a building, and because of such award the limitations contained in the said § 970 of the said consolidation act do not apply. In other-words, the commissioners having awarded $1,000 for a building, they levy over $4,000 in addition to the cost of the building upon property which, if the building had not existed, would not have been within any possible limit of assessment.

We think this is an erroneous construction of the law. The legislature provided that, where no buildings for which compensation could lawfully be made should be taken, the assessment dis

p. 829

trict should not extend beyond the centre line of the blocks adjacent thereto, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened. And this seems to us to have been a clear legislative restriction upon the power of commissioners to levy the assessment for the improvement, except such as might arise from the' taking of buildings, beyond the limits named; and it was only when buildings for which compensation could lawfully be made should be taken that the assessment district was permitted to be extended ; and it was clearly the intention that it was only for the purpose of making compensation for those buildings that that was intended to be the limit of the extended assessment. Even if this were not the necessary construction to be placed upon the section in question, the method in which this assessment was levied was so manifestly unjust and out of harmony with the system upon which assessments of this kind should be levied, that the report of the commissioners should not have been confirmed upon that ground.

It is apparent that the theory upon which these assessments are levied is that the adjacent property shall pay for the land taken for the improvement, and that when buildings are taken then the area of assessment may extend beyond that limit, so as not to make the burden placed upon the land adjacent to the improvement too great or excessive. But in the case at bar, under the pretext of making an award for a building of $1,000, the property coming legitimately within the area of assessment is relieved of the burden to the extent of $4,000, out of a total assessment of $9,000, nearly one-half.

AYe think, therefore, that the order confirming the assessment should be reversed and the proceedings remitted to the commissioners for revision and correction.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.