
    In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., to West Two Hundred and Eighteenth Street, etc., from Seaman Avenue to Ninth Avenue in the Twelfth Ward, Borough of Manhattan, City of New York. The City of New York, Appellant; The City Real Estate Company, Respondent.
    
      New York city—street opening — assessment for benefits.
    
    Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of March, 1911, resettling a prior order entered in said clerk’s office on the 30th day of January, 1911, denying a motion to confirm the supplemental and amended report of the commissioners of estimate and assessment herein, and returning the said report to the commissioners for revision and correction.
   Clarke, J.:

This is the ordinary street opening proceeding. The sole question presented is the distribution of the assessment for benefit. So much of the report as assesses the damages has been finally confirmed. The matter has been several times to the Special Term from the reports of the commissioners. The appeal arises out of a peculiar state of facts and the failure of the court and the commissioners to agree. West Two Hundred and Eighteenth street was laid out on the official map of New York in 1884. Its width is eighty feet. The territory in controversy lies west of Broadway and extends to Seaman avenue. The center line of this street formed the boundary between the lands of Dyckman to the north of this center line and the land of Drake to the south, the two properties being physically separated by a stone wall running along said line. Drake had filed a map dedicating, as between himself and his grantees, a street of forty feet in width which took in the southerly half of this street, and had sold lots abutting on a portion of the street he had so dedicated, and also on the other streets to the south embraced within the tract of land which he subdivided. The City Real Estate Company, the respondent here, derived title to the northerly half of the street designated as damage parcel Ho. 1 through the Dyckmans. In their first report the commissioners made an award for the northerly half of the street, as well as for the southerly half, on the theory that all the land acquired was burdened with easements for street purposes, the fee title being in the abutters. Their award for damage parcel Ho. 1 on this theory for land and improvements was $6,720, and they assessed the land on both sides of West Two Hundred and Eighteenth street at the same rate. The motion to confirm the first report was opposed by the Dyckmans on the ground that the award was made on an erroneous theory, because, as they claimed, no dedication was made of their land, forming the northerly half of West Two Hundred and Eighteenth street between Broadway and Seaman avenue. Ho objection was made to the awards for the southerly half of the street by the successors in title to Drake. The objection of the Dyckman estate was sustained by the court and the report was returned to the commissioners. The commissioners then made a new preliminary report in which they awarded for the northerly half of the street $67,680. In making this award they considered that the owners of the plot had a frontage on the southerly half of West Two Hundred and Eighteenth street. On the objection of the city the commissioners reduced the award to $40,970, based on the assumption that the owner of damage parcel Ho. 1 possessed no easements of light, ah- and access over the southerly half of West Two Hundred and Eighteenth street, which had been dedicated by Drake for the benefit of the lands southerly thereof and which was physically divided by said stone wall from the northerly half, and assessed again the lands on both sides of the street for benefit at the same rate. This award, together with interest, bringing it up to $42,085.22, was confirmed. Upon the motion to confirm the assessments for benefit the objection of the City Real Estate Company was sustained, the court saying: “The Commissioners’ finding as to relative benefit conferred upon the property involved in this proceeding is not just to the owners of property north of 218th Street. The burden of assessment placed upon that property is greatly out of proportion to the relative benefit conferred. The property south of 218th Street should bear a substantially larger part of the assessment with a corresponding diminution in favor of property north of 218th Street. The matter will be returned to the commission for their further action.’1 The commissioners thereupon met again, took testimony, inspected the premises and increased the assessment on the south-. erly side and reduced it on the northerly side. For the property of the City Real Estate Company which is taken it is to receive upwards of $43,000, and it obtains a frontage of 871 feet on an 80-foot public street including a Broadway corner. The awards made by the commissioners for the southerly half of the street amount, to $3,470; the aggregate assessment against the abutting land on this side of the street is $17,310.76. Therefore the owners of the land fronting' on the southerly side are assessed nearly $10,000 in excess of their awards. The real estate company is assessed $36,566.55, which is about $15,000 less than it is to be paid. The court refused to confirm, again upon the ground that it worked an injustice on the owners of property on the north side. We are not furnished with the reason for the action taken by the court, nor is any rule laid down. The ground may be that there is more territory in the benefited region below Two Hundred and Eighteenth street than there is north of it. But, on' the other hand, that section had a street which gave it complete access to Broadway, although but forty feet in width, which had been dedicated by the owners and for which comparatively nothing had been awarded in this proceeding, whereas the property to the north had no street at all prior to the opening because it had no rights in the private street. The owners now have an eighty-foot street which greatly enhances the value of then' property and f br which they have been handsomely paid. It seems to us that the commissioners proceeded upon a proper theory. This being so the court is reluctant to interfere with then actual awards. The order should be reversed and the report confirmed, with costs to the appellant. Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed and report confirmed, with costs to appellant. Order to be settled on notice.  