Majority
p. 333Ross and others vs. The Mayor, Aldermen, &c. of New-York.
Headnote
Under an brcorporation* of New-York, direeling the bliingup,altering or amending a assessment un(^® the 269th secíélative*tothat city; and vícmity" ” L-longing to the equally^hable to assessment as the property of individuthe statute di- ^ expense of the ™a™bTbome by the corpa-'The corporation of New-York, by an ordinance passed the 5th May, 1828, ordained “ that a bulk-head be built in and across the slip or basin at the foot of Spring-street, on , , „ „XT, , , i , the westerly line ot West-street; and that the space between the present bulk-head and the one to be built, be filled in under such directions as shall be given by the street commissioner and one of the city surveyors,” and appointed assessors to make an estimate of the expense, and to make a just and equitable assessment thereof, among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion as nearly as might be to the advantages which each should be deemed to acquire. An assessment was made, which Was apportioned amongst the owners of lots on Spring-street, as far east as Clark-street, and amongst r ° . . ° the owners of lots on the streets intersecting Spring-street, half way to the next street north and south of Spring-street, except that a certain tract of ground lying between Spring and Canal-streetS and West and Washington-streets, was not subjected to assessments for any portion of the expense ; and it was alleged that a lot belonging to one George Watkins, lying upon West-street at the north corner of Spring-street, had not beeni subjected to an apportionment of such expense; nor was any portion of such expense assessed upon Canal-street, although it heads partially upon the slip at the foot of Spring-street. The facts appeared in a return to a certiorate ri, made by the mayor, &c. of the city of Ñew-York.
p. 334The principle upon which the- assessmellj; js mac]e j3 erroneous. I't is: made on the assumpttion that the improvement was directed by the common counc^’ PUrsuance of the authority vested in them by the 267th section, of the act relative, to the city of New-York, (Statutes; vol. 2, p. 445,) which authorizes the common council to- pas® ordinances “ for filling- up, altering and amending- of all public slips in the city.” The authority conferred by this section is for the promotion of the public health of the city;, and! the expense of filling up, altering or amending a slip is to be-borne, one third thereof by the common council, and the residue by the persons- in the vicinity who may be benefittedl thereby, (§ 269.) Admitting the work to be of the character authorized by the 267th- section, the assessment ought to have extended to Canal-street, and not been confined to Spring-street ;• nor ought the tract between Spring and Ca> nal streets (on which a public- market is erected, belonging to the corporationi,) to have been exempted. Indeed it should have borne the whole expense. The work should be considered, a® done under the 220th section of the-, act which authorizes the- common council to-lay out regular streets or wharves, and from time to tímete lengthen and extend the same. The ordinance virtually extended West-street, and the expense ought 'to have been borne solely by the proprietors- of land adjoining or nearest ánd opposite to the street or wharf, in proportion to, the-breadth of their several lots, (§. 221 .)■ The proceeding in this-, case was under the 267th and 269.th sections of the act. The-work was- the “ filling up, altering and amending a public-, slip.” ■ The primary object was the improvement of the slip,, and though tlie extension of West-street was the result- of the .work, such extension was but a consequence, and not the , object originally contemplated. The proceedings therefore-.should not have been under the 220th and 22.1st sections. It is not pretended that one third of the expense had not been paid by the corporation, but it is said that in addition thereto they should have been, assessed, as the owners, of the;
D. Lord, junior, for relators.
R. Emmet, for the corporation.
p. 335property on which the' market stands. This proposition is 1. denied. The charge of one third of the expense of filling up,1 altering or amending a slip, is imposed as a fixed ratio to- be borne by the corporation, whether they hold property in- the .vicinity or not. It is a commutation in lieu of all other •charges and assessments, and established to-prevent disputes " as to the extent of their liability. The common council have a right to make an alteration ■ in a slip, as well for the benefit of" navigation as for the promotion of the public health. If not done solely for the pro- - motion of the public health, it does not necessarily follow ■ that all property equally near to the slip should be assessed. , The property in Canal-steeet was. exempted because it had tits own burdens to bear of a similar character, to defray which -the property in Spring-street contributed nothing.
By the Court. The assessment in this case was correctly made under the 269th section of the act, (2 R. L. p. 445,) but in the application of the principle the assessor erred. By this section it is directed that in all cases where the bylaws or ordinances (of the common council) shall require any thing to be done in relation to the filling up, altering, or amending any of the public slips in the city, the corporation shall cause the expense of such works to be estimated and assessed in the same manner as Is directed by the act with-respect to the paving or regulating the public streets in the city, except that one third of the expense attending the1 saméis to be borne by the corporation, and the residue by the persons in the vicinity who may be benefitted thereby.. The manner of estimating and assessing the expense of paving and regulating the public streets is to make “ a just and equitable assessment thereof among the owners or occupants of all the houses and lots' intended to be benefitted thereby, in proportion as nearly as may be to- the advantage which each shall1 be deemed to acquire.” (§ 275.) The direction given to the assessors by the ordinance of the corporation- was in conformity to this provision of the statute, but the assessors did not obey it when they omitted to assess a proportion of the expense on the lot owned by the corporation,, on which the
p. 336
market is built. The property of the corporation, if benefit* ted by the improvement, is as much the subject of assess* ment as the property of individuals. The intention of the N?*sIature *s manifest, that the property in the vicinity shall contribute two thirds of the expense, and whether that property belongs to the corporation of the city, or any other body corporate, or to individuals, is immaterial. The charge of one third of the expense to the corporation in improvements of this kind is made by the statute, without reference to the owning of property by the corporation in the vicinity. It is á charge upon the funds of the city generally, in consequence of the general benefit derived from the improvement, and the profits t accruing to the corporation from wharfage, &c, In this respect, therefore, the assessment is erroneous, and must be set aside. As to the lot lying upon West street, in the north corner of Spring street, returned as belonging to George Watkins, the relators have mistaken the fact. That lot is assessed as No. 10, fronting on West street, and therefore is properly omitted from the assessment, as fronting on Spring street; on that street it is designated in the map as No. 11, and no assessment appears in the return to have been made on it as No. 11, which probably misled the relators ; but the lot having been assessed as No. 10, it would have been erroneous to have made a second assessment upon it*