p. 628In the Matter of East Eighteenth Street. In the Matter of William Mathews et al.(Supreme Court, General Term, Second Department,Filed February 12, 1894.)Headnote
Municipal corporations—A ssessments—Exemption.The property of an abutting owner, who has improved a part of the street at his own expense which has been accepted by the authorities, is properly excluded from the assessment for improving the whole length of the street.
Certiorari to review an assessment made by the board of improvement.
JosiaK T Marean, for relators ; Gaynor, Grout & Be Fere, ( Wm. F. C. Mayer, of counsel,) for resp’ts.
This is a certiorari to review an assessment for the improvement of East Eighteenth street, in Flatbush, from Church avenue to the town line. It appears that a part of this street within the limits named had been improved and regulated by the abutting owner, one Ficken, at his own expense, and accepted by the town authorities. The contract for the work excluded that part of the street. Only a nominal assessment was placed on the property adjoining the improved part of the street, and the ' expense of the improvement was imposed upon the remaining property. The statute provides that “if the district of assessment shall not extend beyond,the middle of the blocks between said street or avenue, and the street or avenue next adjoining thereto on each side thereof, they shall apportion and assess the said expense ratably, according to the number of feet fronting on said street or avenue on the lands of the several owners, extending back to the middle of such’ blocks.” Laws 1892, c. 572. The relator contends that under this provision the commissioners should have levied its ratable share of the costs upon Ficken’s land according to its front upon the street. This would be grossly unfair, and such an assessment should not have been levied upon
p. 629that land unless the statute required it. Ficken’s part of the street, having been improved and accepted by the town authorities, was not subject to further improvements under the statute under which these proceedings are taken.. The petition, it is true, asks the improvement of the whole length of the street within the limits named. This should be construed as excluding such part of the street as had already been improved both in fact and in law. So, under the statute, the lands upon which the expense was to be apportioned and assessed were the lands fronting upon the street or avenue, but this plainly was limited to the part of the street or avenue improved. There was ho improvement of the street in front of Ficken’s land, and therefore no assessment should have been imposed upon it. But the imposition of the nominal assessment in no wise injures the relator, andFicken does not complain.
The proceedings and assessment of the commissioners should be affirmed, with costs.
All concur.