In re the Assessment for Improving East Eighteenth Street

Majority

p. 603

In the Matter of The Assessment for Improving East Eighteenth Street in the Town of Flatbush.

Headnote

Assessment for a street improvement — when a nominal assessment only is proper.

Upon the return to a writ of certiorari to review an assessment for the improvement, of a portion of a street, it appeared that a part of the street within the limits of the improvement had been imprpved and regulated hy an abutting-owner at his own expense, and accepted hy the town authorities. The contract for the work excluded that part of the street, and only a nominal assessment was placed on the property adjoining'the improved portion of the street, and the expense of the improvement was imposed upon the remaining property.

Sold, that such assessment was proper and should he affirmed.

Certiorari issued out of tlie Supreme Court and attested June 1, 1893, directed to the board of improvement of the town of Elat-

p. 604

bush, in Kings county, Theodore Alston, John J. McConnell and Peter Osman, commissioners, and Henry Hesterberg, town cleric, commanding them to return certain proceedings taken for the purpose of improving a portion of East Eighteenth street in the town ■of Flatbush, Kings county.

Josiah T. Mm-ecm, for William Matthews and others, relators.

Wm. E. O. Meyer, for the board of improvement of the town of Flatbush and others, respondents.

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 author-ties. 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 the 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 such street or avenue, on the land of the several owners, extending back to the middle of such block.” (Laws of 1892, chap. 512.) The relator contends that, under this provision, the commissioners should have levied its ratable share of the cost 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 that 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

p. 605

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 .no improvement of the street in front of Eicken’s land, and, therefore, no assessment should have been imposed upon it. But the imposition of the nominal assessment nowise injures the relator, and Ficken does not complain.

The proceedings and assessment of the commissioners should be affirmed, with costs.

Pratt and DyKMAN, JJ., concurred.

Proceedings and assessment of commissioners affirmed, with costs.