In re the Department of Public Works — 47 N.Y. St. Rep. 231

Majority

p. 231

In the Matter of the Application of The Department of Public Works, Relative to the Opening of One Hundred and Sixtieth Street Between Eleventh Avenue and Kingsbridge Road.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Municipal corporations—Assessments.

An assessment in street opening cases is properly based on the value of the premises as estimated by the tax commissioners for the year in which the assessment was made up, and it cannot be altered because of later valuations.

Appeal from an order confirming the report of commissioners of estimate and assessment.

The following, is the opinion of the court below:

Lawrence, J.—Under the decision of the general term, when this case was last before it, the commissioners were obliged to render to Mr. Buckley a substantial award. 48 Hun, 488 ; 16 St. Rep., 6 . The commissioners state that they have carefully considered and discussed the testimony offered before them in respect to the alleged dedication of Mr. Buckley’s land, “and that the same does not under the decisions heretofore rendered by this court, show a dedication of the said land to public use.” An award is made to Mr. Buckley for the land taken for the improvement in the sum of $17,000. With that award I shall not attempt to interfere, as it is well settled in these cases that the determination of the commissioners is entitled, upon the questions of value and damage, to more credit than the verdict of a jury, for the reason that the commissioners act, or are supposed to act, upon a personal inspection of the lands taken for the proposed improvement. It was, however, I think, erroneous to include within the assessment district the parcels east of Kingsbridge road, Nos. 57, 58, 59, 60, 61, 62 and 63, for the reason that as Mr. Buckley’s buildings' had been destroyed by fire the commissioners were precluded under section 970 of the Consolidation Act from extending the area of the assessment beyond the centre line of the blocks adjacent to the improvement, and beyond the ends of the street, or avenue, or portions thereof, sought to be opened. I am of the opinion that the objection that the land designated on the Commissioners’ Benefit Map, as Ho. 2, is assessed for more than one-half of its value, as valued by the Tax Commissioners, cannot be sustained (see affidavit of Gabriel, as to the valuation for the year 1889, when the assessments were originally made up; Matter of

p. 232

St. Joseph’s Asylum, 69 N. Y., 153 ; Matter of Hebrew Asylum, 70 N. Y., 476 ). The report should be sent back to the commissioners with instructions to amend the same as to the' portion of the expenses upon the property beyond the limits of the proposed opening, and more than half a block on either side thereof, and when thus amended the report will be confirmed.

James A. Deering, for app’lts; William H. Clark, for resp’t.

—We agree with Mr. Justice Lawrence that the decision of the general term upon the original appeal in this proceeding, 48 Hun, 488 ; 16 St. Rep., 6 , is controlling upon the question of the dedication of the land proposed to be taken.

The opinion of the presiding justice upon that appeal covered all the questions now under consideration except such as arise upon the additional facts presented to the commissioners on the re-hearing. As to these new facts and circumstances we agree with the commissioners, and also with Mr. Justice Lawrence, that they do not affect Mr. Buckley’s right to a substantial award, nor do they materially modify the facts and circumstances upon which it was held that no dedication of the land in question had been made. We think, too, that the commissioners properly assessed Mr. Banks’ lot one-half of its value as estimated by the tax commissioners for the year 1889. That was when the assessment was made up, and we can see no reason why it should be altered because of later valuations. The case cited by the appellant, Matter of Schell, 76 N. Y., 432 , does not uphold his contention on this point, while the rule adopted at special term is supported by Matter of St. Joseph's Asylum, 69 N. Y., 353 , and Matter of Hebrew Asylum, 70 id., 476 .

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

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