In re the Opening of the Kingsbridge Road — 12 N.Y. Sup. Ct. 146

Majority

p. 146

In the Matter of the Opening of THE KINGSBRIDGE ROAD.^[1]

Headnote

Assessment — not set aside if the principle on which it is made is not erroneous— Appeal from — what consuLen'ed on.

The court will not interfere merely on the ground that an assessment appears to he larger than it should have been, if no error appears to have been made in the principle upon which it was laid.

An appeal from an order of the Special Term confirming the report of commissioners of estimate and assessment, brings up for review only those questions which were discussed below.

p. 147

Appeal from an order confirming the report of the commissioners of estimate and assessment herein, made in an application of the department of public parks, for and in behalf of the major, aider-men and commonalty of the city of New York, relative to the opening of Kingsbridge road northerly, from the southerly line of One Hundred and Fifty-fifth street to the Harlem river. It was claimed by the appellant, among other things, that the Supreme Court did not acquire jurisdiction to appoint commissioners of estimate and assessment, on account of the failure of the Central park commissioners to locate the said road, and to file maps showing such location, as required by chapter 565 of the Laws of 1865. It was also urged that the Central park commissioners had no power, under chapter 565 of 1865, to widen or straighten Kingsbridge road, power only being given them to lay out new roads, etc. The objections filed with the commissioners of estimate and assessment stated that the assessment made on the property in question was greater than the benefit arising to the same by reason of the opening of the Kingsbridge road.

James A. Deering, for the appellant.

James G. Oa/rter, for the respondent.

The order below should be affirmed:

First. The objections which were taken by the appellant Lynch before the commissioners, relate solely to the amount of the assessment imposed upon his property. I can discover no error in the principle upon which the commissioners acted in making the assessment. The court will not interfere merely on the ground that an assessment appears to be larger than it should have been. The determination of the commissioners on the question of value is conclusive. (Matter of William and Anthony Streets, 19 Wend., 679 .)

Second. I do not regard the alleged jurisdictional objections which are urged by the appellant as well founded. As respects the failure to file the maps, it seems sufficient to say that the defect, if any, was remedied by the act of 1874, chapter 329.

Third. The commissioners of the Central park, as the successors

p. 148

of the commissioners named in the act of 1860, had power to widen and straighten the Kingsbridge road. (Laws, of 1860, p. 337; Laws of 1865, p. 1143.)

Fourth. It seems to me to be a conclusive answer to the other objections urged by the appellants’ counsel, to say that none of them can be considered on this appeal. The present appeal brings up for review only those questions which were discussed below. (Matter of Comrs. of Cent. Park, 50 N. Y., 493 .)

There is nothing on the face of the papers to show that any questions were discussed below, other than those arising upon the objections filed with the commissioners.

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

Davis, P. J., and Daniels, J., concurred.

Proceedings affirmed, with ten dollars costs, besides disbursements. •