
    In the Matter of Opening Wendover Avenue.
    
      (Supreme Court, General Term,, First Department,
    
    
      Filed October 20, 1892.)
    
    1. Motions and orders—Resettlement —Affidavit.
    On motion to confirm the report of commissioners of assessment, an affidavit was read in opposition which consisted mainly of an argument by counsel. Held, that it was within the discretion of the court to permit it to be recited in the order, and that it was not an abuse of such discretion to refuse to grant such permission.
    3. Eminent domain—Opening streets—Assessment.
    The question of the amount of assessment for local improvements is one within the exclusive jurisdiction of the commissioners, and their conclusions will not be disturbed so long as they have been honestly and fairly made and no erroneous principle adopted.
    3. Same.
    Where the commissioners, after the preliminary estimate, discover that certain property has been assessed for a greater amount than that allowed by the statute, they do not'exceed their lawful authority by distributing the amount of such excess among the other property benefited, so long as such other properly is not assessed for a greater amount than the benefit received or than that allowed by the statute. In such case the commissioners are not required to return such amount as unassessable under § 994 of the consolidation act.
    Appeal from order denying motion for resettlement of an order confirming the report of the commissioners of estimate and Assessment.
    
      J. F. H. Baldwin, for app’lt; W. H. Clark and Carroll Berry, for resp’t.
   Patterson, J.

Concerning the order denying the application to resettle the final order confirming the report of the commissioners, by reciting therein that a certain affidavit was presented And read in opposition to the motion, it is sufficient to say that such affidavit (which by stipulation was printed with the record simply for the inspection of the court) was not of such a character as entitled the appellant to submit it as a matter of right; but it was within the discretion of the court to permit, it to be put in; that such permission was not given appears from the order of the -court, refusing to have it recited as.being amonp; the papers used -on the motion, and after considering this affidavit, we see no cause for differing with the learned judge below respecting his decision concerning it, if for no other reason than that it is, in the main, nothing but an argument of counsel in the form of proof, the learned judge below was right in refusing to consider it. It may be convenient for use as a statement of counsel’s views of ■the commissioners’ proceedings, but as a brief it gains no additional force by being verified, and the order denying the motion to re-settle by including this affidavit in the motion papers, is a£firmed, with ten dollars ($10) costs. The objections urged to the final order relate to the assessment for.benefit to property belonging to the New York & Harlem E. E. Company, which was included by the commissioners within the area of assessment for the improvement of opening Wendover avenue. Our attention has been called by the appellant to various matters claimed to be errors on the part of the commissioners, respecting the amounts assessed upon it for the improvement. It has been frequently held that the question of the amount of assessment is one within the exclusive jurisdiction of the commissioners, who act in that regard very much as a jury, and their conclusions will not be disturbed so long as they have been honestly and fairly made. Matter of Boston Road, 27 Hun, 409; Matter of Broadway Widening, 63 Barb., 575; Matter of William and Anthony Streets, 19 Wend., 694.

The only ground upon which we can reconsider the action of the commissioners in this matter would be that of their having adopted an erroneous principle in determining what assessments should be made upon the appellant’s property. It is claimed that there was a radical error in the proceedings of the commissioners in this respect; that they have increased the assessment upon the appellant’s lots by so much as they were unable to assess upon lots of other parties by reason of such other lots not being assessable under tire law up to the full measure of the benefit which they were to receive by the improvement. The_ facts which appear upon the record and which give rise to this question as to the correctness of the principle of assessment adopted by the commissioners, are the following: In the preliminary estimate made by the commissioners, the assessment upon the appellant’s lots was $3,898.16. Subsequently, and in the final report, the assessment was increased to $8,378.13.

The commissioners, in their report, state that the reason for this increase was that certain other property which they had in their preliminary estimate assessed at a certain sum could not be lawfully assessed at the figures adopted, for the reason that, by a provision of the consolidation act, the assessment could not exceed one-half of the assessed value for general taxation of those lots, and that necessitated a reduction of the assessment for this particular improvement of those other lots. The amount of ■ the diminution of the assessment on the other lots than those of the defendant, thus necessitated by reason of the provision of law referred to, was charged over in part on the defendant’s lots. The practical question arising, therefore, is, were the commissioners acting within their lawful authority when they thus increased the assessment upon the appellant’s lots by adding to the preliminary estimate the proportionate amount of the deficiency not realizable from property as to the assessment of which they were limited by the law referred to.

It appears from the report of the commissioners that the assessment levied upon the appellant’s lots has not been arbitrarily-made ; that in their judgment the benefit derived by the defendant’s property from the improvement is equal to the amount of the burden cast upon it by the assessment, and is within one-half of the assessed value, and," therefore, the question is reduced to the very simple one as to the power of the commissioners to levy the assessment in the manner ;pursued by them. ' This question arises in the first place as to the. authority these commissioners possessed respecting the assessment It would appear from § 994 of the consolidation act they had the right to determine whether the whole- cost and expense of the improvement should be assessed upon the property deemed to be benefited pursuant to § -970 of the act. They did determine that the whole expense should be borne by the property benefited. Section 970 provides that they shall make a just and equitable estimate and assessment of the loss and damage over and above the benefit and advantage, or the benefit and advantage over and above the loss and damage, as the case may be, to the respective owners entitled to, or interested in, the lands and premises taken for the street, and that as to lands above Fifty-ninth street the commissioners may assess therefor all such lands and tenements as they may deem so-benefited by such improvement to the extent and amount which they may deem such lands and tenements benefited thereby.

By § 958 of the consolidation act, it is provided that the commissioners may assess for street opening, persons, lands and tenements as they may deem to be benefited by such improvement to the extent which said commissioners of estimate and assessment deem such persons, lands and tenements so benefited thereby, provided that as to the streets, avenues or roads which shall be in opinion of the said commissioners of estimate and assessment, a majority of them, more than one mile in' length, not more than one-half of the amount awarded for damages and of the expenses attending such opening shall be so assessed; the amount of such damages and expenses not so assessed being thereby made a charge upon the city of New York to be paid as thereinafter provided. Section 967 contains a provision to the same effect.

We think that the commissioners, under the provisions of the consolidation act, had the right to limit the area of assessment, and as the contemplated improvement of the opening of Wend-over avenue was less than a mile in length, to assess the whole cost, and expense of the improvement upon the property benefited thereby, or, in other words, to make it what is called a local assessment. This being so, the property benefited was called upon to bear the entire charge; no one piece could of course be burdened beyond the amount of benefit accruing, but it was within the competency of the commissioners to so distribute the total amount of as to realize that amount from the property so benefited, and that is what they have done in this particular" matter. The lands of the appellant are not' called upon to contribute beyond the amount of the benefit to them, and what is called the inequality of the" procedure in this assessment is not an inequality arising from anything else than the inhibition of the statute upon assessing other lands beyond one-half of their value as assessed for general purposes of taxation. There is nothing unequal or unfair In that. It results from a positive ’ statute. The commissioners were restrained by the express provision of law. They had reached the limit of their power to assess, but because they could not fix a higher rate upon one piece of property, it did not necessarily prevent their charging a proportionate share of the whole improvement upon other property concededly benefited to the extent to which it was assessed, and within the limitation of the law upon their power or right to assess. The contention of the appellant, stated in its own words, is that inasmuch as the commissioners struck off from their preliminary estimate the assessment on lots beyond the extent to which they might go, of the half tax valuation of such lots, it was their duty to return the amount so stricken off on account of the half tax value as not assessable by them to the board of assessors, and that it was for the board of assessors to make up the deficiency pursuant to § 994 of the Consolidation act, or, in other words, that the difference between the amount originally laid upon the lands other than the appellant’s and the amount to which the assessment of such other lands was reduced, should have been returned as a non-assessable amount; but we do not regard the section referred to as operating in this matter in the way claimed by the learned counsel for the appellant What is required by that section is, that the amounts upon property which cannot be assessed at all for the improvement are to be returned and provided for as therein enacted, but where the whole amount of the assessment can be realized from property properly assessable and within the limit of benefit to be derived, and where the determination of the commissioners is that the whole assessment shall be realized out of the property benefited, the section last referred to does not apply, and it was not the duty of the commissioners in this particular case to return the amounts referred to to the board of assessors for them to realize in' the way pointed out by § 994. The assessment as levied, according to the report of the commissioners, was not in excess of the benefit to the property of the appellant, and the whole cost of the assessment was properly distributed, for the reason that the limitation of value to the one-half of the taxable value is a legislative determination of what is an equitable and just amount to be levied upon property benefited by an improvement of this character, and it is sufficient that the commissioners adopted as a value that which the legislature has said was a proper criterion under such circumstances; and inasmuch as no greater burden is imposed upon the appellant’s property than the benefit received by it, we think that the commissioners did not adopt an erroneous principle, and that we would not be justified, therefore, in doing other wise than affirming the order of the court below, which confirmed their report.

Order affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Van Brunt, P. J., concurs in result.  