
    In the Matter of the Application of Orson D. Munn, Respondent, to Vacate an Assessment Levied upon his Property for Morris Street Sewer and Improvement, between Greenwich Street and Broadway, and Sewer in Broadway; Confirmed December 15, 1897. The City of New York, Appellant.
    
      Assessment for benefits—motion to set it aside in Sew York city, under what statute determined—principle of assessment — name of the owner or occupant to be stated.
    
    A motion, made after the Greater New York charter (Laws of 1897, chap. 878) went, into effect, to set aside an assessment for a local improvement in the city of New York, confirmed prior to that time, is governed by chapter 618 of the Laws of 1895, amending section 903 of the Consolidation Act (Laws of 1882, chap. 410), which provided that if the principle of apportionment was erroneous the court should reduce the assessment to its proper amount, or, in its discretion, set aside and annul the entire assessment and direct the assessment list to be returned to the board of assessors for reapportionment. Section 962 of the Greater New York charter, which provides that the court shall not vacate or reduce any assessment, otherwise than to reduce it to the extent that it may he shown to have been increased by fraud or substantial error, is not applicable-to such a case.
    Mere inequality in the assessments is notin itself evidence of the adoption of an erroneous principle of apportionment.
    In the present case, in which it appeared that an assessment levied upon the-various parcels along the line of the improvement ranged from two dollars and fifty cents per front foot to fifty-three dollars and seventy-eight cents per front-foot, althouglvthe parcels were similarly situated and apparently received the-same benefit from the improvement, the court considered that an order returning the assessment roll to the hoard of assessors for reapportionment should be affirmed, to the end that more satisfactory evidence might be given justifying the action of the assessors.
    
      Semble, that under section 869 of the Consolidation Act, which provides that the assessors shall state the names of the owner or owners and occupant or occupants, and that it shall he their duty to ascertain the same by inquiry of the-deputy commissioners of taxes and of the receiver of taxes, the failure to-insert in the assessment the name of the owner or occupant of the premises-assessed, after ascertaining such name, invalidates the assessment, at least as. to the person whose name was omitted.
    Appeal by The City of Mew York from an order of the Supreme-Court, made at the Mew York Special Term and entered in the office: of the clerk of the county of Mew York on the 10th clay of Octoher, 1899, vacating an assessment upon property of the petitioner, Orson D. Munn, and directing ■ that the assessment list be returned to the board of assessors for reapportionment.
    
      George L. Sterling, for the appellant.
    
      Henry De Forest Baldwin, for the petitioner, respondent.
   O’Brien, J.:

The petitioner moved to set aside and annul an assessment for $2,236.71 for a sewer as levied and confirmed on December 15,1897, against his premises at 31 and 33 Broadway, and for a reapportionment and reduction thereof on the ground that substantial error had been committed by the board of assessors. The petitioner’s affidavit states that the sewer was constructed along Morris street to Broadway, and thence north along Broadway to his northerly boundary line; that his premises have a frontage on Broadway of about 41 feet and an area of about 4,900 square feet, and his building is a. five-story structure; that the property adjoining his on the south has a frontage of 29 feet on Broadway, and a frontage of 184 feet on Morris street, an area of 9,400 square feet, and an office building-thereon of thirteen stories, the assessment, however, being only $971.78 ; that the property on the south side of Morris street, extending 248 feet along the new sewer, was assessed 'for $1,316.32; that the property on the east side of Broadway, opposite the petitioner’s property, was not assessed at all; that while the petitioner is informed and believes that some of the property owners assessed had notice of the proceedings to impose the assessment and appeared before the board with evidence, he received no notice and did not appear; that prior to the construction of the sewer the petitioner had the right of drainage across the property ad joining his on the south into the old sewer, but this drain was taken up, and the adjoining property thus became free from an incumbrance and gained as well the use of the new sewer, still being assessed less than he was. The total assessment was $4,524.81, of which the petitioner’s portion was $2,236.71, he being charged $53.78 per front foot, while the next highest charge was $6.33, and the lowest, $2.50.

The respondent contends that the issues here are to be determined. in accordance with the provisions of the Consolidation Act (Laws of 1882, chap. 410), which was in effect when the assessment was confirmed ; and he shows that by section 903 thereof, as amended by Laws of 1895, chapter 613, “ In case the principle of apportionment of an assessment be erroneous, the eonrt shall reduce the assessment on the lots of the petitioner aggrieved thereby to the lawful and just amount that ought to have been assessed thereon, or, iisi its discretion, the court may set aside and annul the entire assessment, ■* * * and direct the assessment list to be returned to the board of assessors for reapportionment.”

The appellant insists that as this proceeding was begun in 1898, after the Greater New York charter (Laws of 1897, chap. 378, § 962), went into effect, its provisions must rule, and. therein it is provided that “Ho court shall vacate or reduce any assessment, * * * otherwise than to reduce any such assessment to the extent that the same may be shown by parties complaining thereof to have been increased * * * by reason of fraud or substantial error.”

In granting the petitioner’s motion the court below held that the Consolidation Act was controlling—-the confirmation of the assessment having been before the Greater Hew York charter went into effect—and that on the merits the motion was well founded, no rule of equality as to property similarly circumstanced and benefited having been observed, and the petitioner being charged with nearly one-half the total expenses.

We think the judge at Special Term was right in holding that this proceeding is governed by chapter 613 of the Laws of 1895, amending section 903 of the Consolidation Act. This act was in force until January 1,1898, when the charter went into effect. The assessment was confirmed on December 15, 1891 — at which time, if erroneous, the petitioner’s right to have it corrected came into existence. Section 1614 of the charter provides that this right, like all other rights existing when it went into effect, should not be “ lost or impaired or affected ” by reason thereof.

Upon the merits the assessment shows that, out of the ten lots, six different amounts of assessment per front foot were adopted. There is undoubtedly great inequality, especially in the petitioner’s ■case, in which the amount per front foot is put at nearly nine times as much as in any other case. Hor is the reason for this made plain by the record. In the past the petitioner had. drained his property through an old sewer in Morris street by means of pipes running ■across the property adjoining on the south, Fo. 29 Broadway. The owner of this lot, however, claiming that the petitioner had but a bare license, gave notice of his intention to revoke it, and requested that the pipes be removed. There was a dispute between the parties as to the right to demand this, the result of which was that the petitioner made application to the city for a new sewer on Broadway. While this was being secured, it would seem, he was allowed to use the old one. From this it is argued that the new sewer was of more benefit to the petitioner than to others, being a .practical ■necessity to him; but it seems unjust to throw substantially the whole burden of the assessment upon him.

The Consolidation Act (§ 878) requires that the amount of the assessment shall be apportioned among the owners and occupants of houses in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire.” The assessors are thus required to consider each particular case upon its own merits, and any purely uniform rule which left this consideration out of account would be illegal. Thus, in People ex rel. Parker v. Jeff. Co. Court (55 N. Y. 604), it was held that a uniform apportionment by the acre, instead of according to benefit, is illegal. And in Clark v. Village of Dunkirk (12 Hun, 182; affd., 75 N. Y. 612) it was held illegal to apportion the assessment uniformly among various lots, without regard to their distance from the sewer or the expense of ■connection therewith. It would certainly be illegal to depart from the rule that each owner should pay an equivalent to that which he himself has received. That is the very foundation principle of assessment proceedings.

In County of Monroe v. City of Rochester (154 N. Y. 570), cited by the petitioner, it was said that inequality was evidence of illegality ; but a close perusal of the opinion seems to show that all that was held was that, in that particular case, it appeared that the distinctions were unfounded and merely arbitrary. Where there is no just reason for distinction between different properties they should be assessed equally. But the case is distinct authority for the proposition that mere inequality, standing alone, is not evidence of the adoption of an erroneous principle.

It has recently been decided by the Supreme Court of the United States in the case of Norwood v. Baker (172 U. S. 269) that to assess according to the front foot without regard to the amount of benefit is unconstitutional, and that the only ground upon which an assessment for benefit can be sustained is that an amount of benefit lias been received equal at least to the amount of assessment; and to assess at so much per front foot when, as matter of fact, the property was not benefited to that extent, was illegal, resulting in the depriving of a man of his property without due process of law.

The assessors, therefore, should not apportion the assessment according to feet measurement, but were bound to fix it in proportion to the amount of advantage received by each piece of property ; and the question of the extent to which a particular piece gained benefit was one for the assessors to determine. Allowing, however, the widest discretion to them, it is difficult to see upon what theory or principle they proceeded here. It was not, of course, necessary for them to decide whether or not the petitioner had the right of drainage over the adjoining lot, or whether such right was or was not destroyed, if it ever existed; but still it was their duty to take into consideration all the circumstances regarding the ability of the petitioner to have sewer drainage for his premises, as compared with the greater advantages he derived from the construction of the new sewer.

At first blush it seems unjust to impose the greater part of the cost on the petitioner when the other properties must have shared in the improvement. Uor does it appear that any consistent rule was followed as to such other properties. Thus, with respect to parcel 9, being the Columbia Building, it was assessed at but four dollars and fifty-four cents per front foot, though the building itself is the most valuable structure upon the line of the improvement. Parcels 1 and 8 were assessed, one at the rate of two dollars and fifty cents, and the other at the rate of six dollars and two cents per front foot; and 'parcels 2 and 7, which had much less depth than parcel 8 and were much less improved, were assessed at six dollars and thirty-three cents per front foot. So, also, as to properties on the south side "of Morris street, which would seem to be equally benefited by the sewer, no uniform' rule was adopted, so that the result is that properties the most valuably improved received the lowest assessment, while those of the smallest area and with the poorest buildings were assessed the largest amount. As it is for the assessors to fix the assessments according to the benefits received, it is difficult to understand why there should be such discrepancies between properties similarly situated and apparently receiving the same benefits. It may be that good reasons can be shown for these differences upon another hearing; but as the record comes to us, we think it but right that such new hearing should be had, to the end that more satisfactory evidence may be given justifying the action of the assessors.

Although upon the merits, therefore, we agree with the conclusion reached by the learned judge at Special Term, there is another objection made which we think should be removed, as it might affect the validity of this proceeding.

It is alleged in the petition that the assessment list did not state the petitioner’s name, or any other, as the owner or occupant of. the premises. The petitioner was in fact both owner and occupant. Section 869 of the Consolidation Act (Laws of 1882, chap. 410) provides that the assessors shall state the names of the owner or owners and occupant or occupants; and it shall be their duty to ascertain by inquiry to be made of the deputy commissioners of taxes * * * and by inquiry of the receiver of taxes as to such ownership,” etc. The reasonable construction of this is, that if the name or names are known, they shall be stated; and that in any event due attempt to learn them shall be made in the manner provided. Here the board took testimony in J une, 1897, long before the assessment was confirmed, from which it plainly appeared that the petitioner was the owner of lot 10. It then became the duty of the assessors to insert it; and the well-settled rule is that provisions regulating the method of taxation must be strictly followed. This omission, if not corrected, might invalidate the assessment, at least as to the petitioner.

We think the order appealed from should be affirmed, with costs.

Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., ■concurred.

Order affirmed, with costs.  