In re Rust

Headnote

Proceedings to reduce assessments in the city of Brooklyn — the whole amount of any deduction should he made from the part remaining unpaid —1875, chapter 688, § 30.

Appeal by the petitioner from an order made in a proceeding for the reduction of an assessment for a local improvement in the city of Brooklyn. There had been a trial and the judge had found that in October, 1873, an assessment for a local improvement was laid on the land of the petitioner and confirmed, of $809.02; that the expense of the improvement for which the assessment was laid was increased in dollars and cents, by reason of fraud and irregularity, to the extent of twenty per centum thereof in excess of the fair value of the actual improvement; that the aggregate amount of such assessment was so increased by the sum of $161.80 ; that' the assessment was payable in ten installments, of which the petitioner had paid six, amounting to $683.63, of which $185.11 was for principal and $198.22 was for interest.

The judge then found as a conclusion of law that the amount of the original assessment, upon which the order of the court could operate, was the sum of $323.61, because the original assessment was discharged and canceled by payment to the extent of $185.11. The court reduced the assessment from $323.61 to $258.89. The petitioner claimed that it should have been reduced as follows:

The amount of original assessment unpaid............. $323 61

Amount representing frauds, etc.............$161 80

Interest on $161.80 for five years at 7 per cent.. 56 63

Amount of reduction...................$218 13 218 13

Proper amount of assessment.................... $105 18

This deduction was made under the provision of section 30 of chapter 633 of the Laws of 1875, by which any assessment in the city of Brooklyn may be reduced to the extent the same may have been increased in dollars and cents, by reason of fraud or irregularity, so long as the proportion of such assessment, which is the fair value of the improvement, shall not be disturbed thereby.

The court at General Term said : “ The finding here is, that the whole assessment was increased to the extent of $161.80, and we think that sum should be deducted from the whole and not from the amount remaining unpaid, and we must assume that the proportion of the fair value of the improvement which shall have been assessed on the land of the petitioner is not more than $647.22, the amount that will remain after the unlawful increase of twenty per centum is deducted, and, therefore, we think the sum of $161.80 should be deducted from the amount remaining unpaid, and that the petitioner should not be compelled to pay beyond the amount that will remain unpaid by deducting that sum from ,the whole assessment and making the calculation of interest on the remainder and giving him credit for the payments he has made for principal and interest.

This is not a proceeding to vacate an assessment, and therefore the rule adopted in the Matter of IAma ( 77 N. Y., 170 ) does not apply.

The order appealed from must be verified in accordance with this opinion.