
    In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of Washington Avenue, etc., from the East River to Jackson Avenue, etc. Wotherspoon Plaster Mills, Incorporated, and Stuard Hirschman, Appellants; The City of New York, Respondent.
    Second Department,
    January 7, 1916.
    Municipal corporations — street opening, city of New York — assessment of damages upon property benefited—rehearing before new commissioners pursuant to direction of court — right of parties to introduce new evidence — duties of commissioners.
    When in fixing the area of assessment in a street opening proceeding in the city of New York the commissioners discover that the damages allowed for lands taken will result in an assessment exceeding half the value of lots assessed, contrary to section 980 of the city charter, and the court sustained the opposition of the city to the confirmation of the
    
      commissioners’ report and sent it back for revision and correction, with a direction that the entire damage awards and costs be assessed on the property benefited and, by reason of the death or resignation of the old commissioners, the report came before new commissioners, it was error to refuse to allow the introduction of new evidence as to values and to base a report upon the former testimony of witnesses whom the new commissioners had not heard and to work out a new and different mathematical" result from the former testimony.
    A determination different from that made by the old commissioners must be upon evidence taken so as to protect the interests to be assessed, and an attempt to impose upon lots a greater burden than the benefits conferred amounts to confiscation and a taking of property without due process of law.
    In assessing lots considered to be benefited by the street opening the assessment cannot exceed one-half the value of the lots at the date when title vested in the city.
    Separate appeals by Wotherspoon Plaster Mills, Incorporated, and another, "from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of March, 1914, overruling their objections to the confirmation of the amended report as to assessments for benefit herein, and confirming said report as made by the commissioners of estimate and assessment in so far as it relates to the lands of the appellants.
    
      Charles E. Lydecker, for the appellant Wotherspoon Plaster Mills, Inc.
    
      Benjamin Trapnell, for the appellant Stuard Hirschman.
    
      John J. Kearney [ Joel J. Squier and Lamar Hardy with him on the brief], for the respondent The City of New York.
    
      John Broohs Leavitt, who filed a brief as amicus curice.
    
   Putnam, J.:

This original commission at a meeting on February 20, 1906, fixed the area of assessment taking in half a block on each side of Washington avenue as opened. As the law then stood the commission had power to make this determination. (See Greater N. Y. Charter [Laws of 1901, chap. 466], § 980, as amd. by Laws of 1905, chap. 299. Since amd. by Laws of 1906, chap. 658, and Laws of'1909, chap. 394.) This street opening was about 6,000 feet in length, connecting Jackson avenue in the borough of Queens with the East river frontage opposite Blackwell’s island. Cutting through the long block of about 600 feet between Vernon avenue and the East river involved slicing off the front of the Wotherspoon Plaster Mills, and a like strip from the lands of Mr. Hirschman at the southerly side of the avenue. By the new grade of the avenue descending to the river front the lands" at the sides were left at quite a height above this new street excavation. Hence in this river end block to' the west of Vernon avenue were the larger awards for damage. The amount allowed the Wotherspoon Plaster Mills, Inc., was $115,589, without interest, and the damages to Hirschman for the lands taken on the opposite side of Washington avenue were $32,000. In distributing these damages the commission sought to apply the “block by block ” rule. But it was then confronted by the limitation in the city charter, section 980, that such assessments cannot exceed half the value of the lot assessed. On January 4, 1910, the commission found that to levy the damage awards upon the lands in that river block west of Vernon avenue would impose a burden of more than half the lot values. Although the city thereupon recalled its expert, Mr. Eyan, and sought to put up the value of these lots so as to surmount this difficulty of valuation, the commission adhered to their previous view, stating that the offered testimony did not afford any ground to change their conclusion.

.Accordingly the original commission, Messrs. James J. Conway, John Mackie and Samuel J. Campbell, reported an assessment for benefits against appellant Wotherspoon Plaster Mills, Inc., of $51,351, and as to appellant Hirschman of $16,612.

. This, however, left a deficiency, since the total benefits assessed hack were $263,991.96, while the aggregate damage awards were $310,283.40. This first statement was signed on September 8, 191Ó. The damage awards had been accepted without question.

The city opposed confirmation, because of this deficiency. On February 1,1912, the court at Special Term sustained the city’s position by an order sending back the report for revision and correction, and directed that the entire damage awards and costs be assessed on the property deemed to be benefited. By reason of death and by resignation, this report came back before new appointees. As appears by the record, including the original abstract of assessment, these appointees took the figures originally reported, and, with the aid of a computer, proceeded to reassess the benefits in the effort to bring about a balance. The increased figures were put over those originally entered, like a palimpsest. Except the item of one-third the value of condemned buildings, $25,184, which they assessed upon the city pursuant to the city charter, section 980, the balance was reached by raising the benefit assessments. As to these two appellants, the increases were: Wotherspoon Plaster Mills, Inc., original assessment, $51,357; second assessment, $69,692.75. Hirschman, original assessment, $16,672; second assessment, $29,394.98.

These new footings, superimposed on those of the 1910 report, were then signed by the two acting members of the second commission on November 26, 1913. Not only did the commission make these increased assessments for benefits, but they arrived at the result without hearing testimony. When the appellants offered to introduce evidence of value, they were refused. Furthermore, no member of this commission had heard the testimony originally given as to the values of the appellants’ property. Therefore, a marked contrast appears between the two reports. The first commission had themselves heard testimony as to value, and had original jurisdiction of the distribution of this burden of cost of the street opening. In the exercise of such discretion, it found and determined as a fact that the attempted assessment would exceed the statutory limit of half the lot’s value in this river block. The second commission, misinterpreting the mandate of the Special Term, declined to receive proofs of value offered, and, acting as calculators and computers, imposed assessments of over sixty per cent of the value of the lands, according to the city’s original testimony.

Obviously such results cannot stand. Either a commission must act upon proofs already in the record, or upon such new proofs as it may openly take upon due notice to the assessed lot owner. When a prior commission, after hearing evidence, reports that it cannot impose the full sum sought because such assessment will be more than half the lot values, such a determination cannot be lightly disregarded. ■ A different determination, if it is to be judicial and not arbitrary, must be upon evidence taken so as to protect the interests to be assessed. An attempt to impose on the lots a greater burden than the benefits incurred, especially to assess a lot beyond half its value, is to proceed without due process of law, and leads from assessing for benefits towards confiscation. The direction to assess back the cost and expense of the street opening is subject to an express condition that the lands shall have been benefited as the city charter contemplates.

The order confirming the second report must, therefore, be reversed, with ten dollars costs and disbursements, and the report sent back to a new commission, with direction to proceed to assess and distribute the burdens of this street opening in proportion to the benefits sustained by the several lots ■ within the area of assessment; and, in determining such benefits, to afford appellants and any lot owners interested an opportunity to give proof on the questions of value and of benefit, which testimony may be taken in the usual manner, with liberty to cross-examine and to give counter testimony. Furthermore, the requirement to assess the lots considered to be benefited must be subject to the rigid limitation that such assessment shall not exceed half the value of the lot as of the 1st day of March, 1907, when the title vested in the city of New York.

Jenks, P. J., Thomas, Oarr and Stapleton, JJ., concurred.

Order confirming report of commissioners of assessment reversed, with ten dollars costs and disbursements, and matter sent back to a new commission to be appointed, with direction to proceed in accordance with opinion. Order to be settled on notice before the presiding justice. 
      
       Repealed by Laws of 1915, chap. 606. See Greater ÜST. Y. Charter, §§ 973, 1010, as added by Laws of 1915, chap. 606.— [Rep.
     