In re Lowden

Headnote

Assessment— surveyor’s fees — when and how they may be included in it — when am, assessment is reduced, interest is allowed only from the date of the order reduo ing it.

Appeal by the petitioner from ati order of the Special Term denying a motion of the petitioner to vacate the whole of an assessment, and appeal by the Mayor, etc., from so much of the order as vacated a portion of the assessment.

The court at General Term said: “ The Special Term, while upholding the assessment generally, was of opinion that the charge contained in it for surveyor’s fees was illegally assessed. The Court of Appeals have lately determined, In re Merriam ( 84 N. Y., 596 ), that the expenses of surveyors’ fees in such cases actually accruing in the construction of the improvement for which the assessment is laid, are proper items to be embraced in the assessment. But in this case the amount allowed for surveyor’s fees does not appear to have accrued on these particular sewers, but the amount was arrived at by taking a per centage of this work, as compared with the whole amount of work done for surveying during the year, and without reference to the actual amount expended in this work. The Special Term considered this to be an illegal mode of getting at the amount of surveyor’s fees, and we are also of that opinion. The surveyor’s fees were ordered, therefore, to be stricken out of the assessment, and the assessment reduced accordingly.

The court also held that interest can only be charged from the date of its order upon the assessment as reduced. This followed the decision of this court in a somewhat similar case, the court being

of opinion that the petitioner was not chargeable with interest upon the amount of the assessment, because a greater sum was claimed than he was lawfully bound to pay, and therefore he was not in default for not paying such greater sum, and should not have been charged with interest.”