In re the Hebrew Benevolent & Orphan Asylum — 17 N.Y. Sup. Ct. 112

Majority

p. 112

In the Matter of the HEBREW BENEVOLENT AND ORPHAN ASYLUM OF THE CITY OF NEW YORK, to Vacate an Assessment, etc.^[1]

Headnote

Assessments in city of New York — valuation by ward assessors — § 7, chap. 326 of 1840 — Irregularity in levying assessment— corrected under § 27, chap. 383, 1870.

It is a sufficient compliance with the requirements of section 7 of chapter 326 of 1840 — providing that the commissioners or assessors for making estimates and assessments for any improvements in the city of New York, authorized hy law to he assessed upon the owners and occupants of houses and lots shall, in no case, assess any house or lot for more than one-half the value of the same, as valued hy the ward assessors in which the same is situated — that such house or lot has heen valued hy the ward assessors at any time previous to the imposition of the assessment.

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Accordingly, held, that where the property of the petitioners had been valued by the ward assessors in the years 1854, 1855 and 1856, an assessment might be imposed thereon in the year 1869, though no valuation had been placed thereon after 1856.

Second Avenue Methodist Ghwrch (Court of Appeals, MS.) distinguished.

An assessment, exceeding in amount one-half of the value placed upon the property by the ward assessors, is irregular only, and may be corrected under section 87 of chapter 383 of 1870.

Appeal from an order made at tbe Special Term, denying a motion to vacate certain assessments imposed upon tbe property of

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tbe petitioners. Tbe assessments were imposed in 1869,1870,1872 and 1874

Tbe petitioners acquired title to tbe property upon wbicb tbe assessment was imposed, seventeen lots, in tbe year 1860, and erected thereon a building used as a bouse of industry. Tbe property was never valued by tbe ward commissioners as required by section 7 of chapter 326 of 1810, after its acquisition by tbe petitioners.

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It appeared upon tbe bearing tbat tbirty-six lots,' including those of tbe petitioner, were valued by tbe ward commissioners in tbe years 1854, 1855 and 1856. Tbe total valuation of tbe petitioners’ lots, in tbe latter year, was $4,839.90.

One of tbe assessments was for making a sewer in Seventy-seventh street, and amounted to $3,412.60.

Tbe petitioners claimed tbat the assessments were invalid, because tbe lots bad not been valued by tbe ward commissioners at tbe time tbe assessments were imposed; and tbat, even if tbe prior valuation was a sufficient compliance with tbe statute, tbe assessment for tbe sewer in Seventy-seventh street was invalid, because it exceeded one-half of such valuation.

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Irvmg Wa/rd, for the appellants.

I. A. Beall, for the city.

The petitioners claim, that there never was any valuation placed upon the property which they own, and that their case falls directly within the decision made by the Court of Appeals in The Matter of the Second Avenue Methodist Church, decided in June, 1876, and which went up from this court. They also claim that the assessment for the sewer in Seventy-seventh-street should be vacated, as it is based upon an estimate exceeding one-half of the valuation of the property assessed, as shown by the corporation, and inasmuch as the court has no power to order a reduction of the amount unless authorized by the charter of 1870, which is denied.

The first premise is unfounded, because the facts do hot warrant it. There had been an assessed valuation of the property prior to the imposition of the assessments, namely, in 1851, 1855 and 1856, and this fact, it was determined by the court below, removed it from the operation of the decision made in the Court of Appeals. This view seems to be correct. The court said in that case: “ It is apparent that the case proceeded upon the tacit assumption, that there had never been a valuation put upon the lots by the ward assessors or their successors.” And again: “ The authority to the city, in the purview of the proviso, is no more than to assess for local improvements all property benefited' thereby, when that property has been previously valued by the general tax assessing officers.” The proof was made, therefore, by the city of a previous and duly assessed value by the proper officers, which furnished the link which was omitted in the case of the Second Avenue Methodist Church, and makes the assessments valid.

In reference to the assessment for a sewer in Seventy-seventh street, it seems to be conceded that the impost was based upon an erroneous valuation of the property, being in excess of one-half of its assessed value. This does not render it necessary to vacate the assessment. There can be no doubt that it may be reduced under the provisions of the charter of 1870. (Laws 1870, page 903, chap. 383, § 27.) There is nothing, in the judgment of the Court of

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Appeals, in tbe Second avenue case affecting this question. Tbe lack of authority to impose an assessment, wbicb was declared in tbat case, is given here by tbe proof suggested, and bence tbe assessment in excess is an irregularity only.

Tbe order should be affirmed, therefore, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat it should be reduced to tbe proper sum.

Ordered accordingly, without costs to either party on this appeal.

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

Order affirmed, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat reduced to tbe proper sum, without costs to either party.