
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., to the Lands, Tenements and Hereditaments Required for the Opening and Extending of East One Hundred and Thirty-sixth Street, etc., from Locust Avenue to the East River in the Twenty-third Ward, Borough of The Bronx, in the City of New York. Harlem River and Port Chester Railroad Company and Others, Appellants.
    First Department,
    July 8, 1908.
    Municipal ¿órporation — real property—street assessment—property benefited—lands of railroad.
    A resolution of the board of estimate and apportionment of the city of New York requesting the corporation counsel to acquire title to lands required te extend a street “to the East River” authorizes the acquisition of lands between high-water mark and the bulkhead line, since the purpose of extending the street is to afford access to the river.
    Where the extension of á street largely benefits the surrounding neighborhood as-well as property fronting thereon, the “block rule” of assessment for benefits is inapplicable.
    The principle underlying an assessment for an improvement is that the property assessed be directly benefited by the improvement so that the assessment will represent the difference between the value of the property before and after the assessment.
    The unoccupied part of a strip of land 100 feet wide acquired by a railroad for a roadbed pursuant to its charter-, 30 feet of which is occupied by tracks, should not be substantially assessed for a street improvement in its vicinity, since its value for the purpose to which it is devoted is not enhanced by the improvement. A nominal assessment only should be imposed.
    Appeal by the Harlem Biver and Port Chester Bailroad Company and others from an order, of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of February, 1907, confirming supplemental and amended report of commissioners of estimate and assessment.
    
      Robert L. Luce, for the appellants Harlem River and Port Chester Railroad Company and the New York, New Haven and Hartford Railroad Company.
    
      John C. Shaw, for the appellants James H. Young Stone Company and others.
    
      Thomas G. Blake, for the respondent The City of New York.
   McLaughlin, J.:

This proceeding was instituted by the city of Hew York to acquire title to the land required for the opening and extending"of One Hundred- and Thirty-sixth street from Locust avenue to the East river, a distance of one block. Commissioners were appointed, who made awards for damages for the land taken from Locust avenue to the bulkhead line in the East river. The assessment for i t benefits was not confined to the property immediately adjacent to the proposed street, but included a large area,'and from the order confirming the supplemental and amended report of the commissioners, this appeal is taken by certain of the owners of' the property assessed. The resolution of the board of estimate and apportionment, under which the proceeding, was instituted, requested the corporation counsel to take file necessary steps to acquire title to the lands' required for the purpose of extending East One Hundred and Thirty-sixth street from Locust Avenue to the East River,” and it is now urged on the part of such appellants that the awards for the land between the high-water mark and the bulkhead line in the East, river were unauthorized. __ ' ' ;

I do not think there is any merit in this claim. The purpose in extending the street was, obviously, to afford access to the river, and this could not be accomplished-unless the city acquired title to the bulkhead line. The board had the power to authorize this to be done (Matter of Mayor of New York, 74 App. Div. 343), and it is evident that such was its intention. (Matter of City of Brooklyn, 73 N. Y. 179.) In subsequent proceedings the property sought' ,to be acquired was described as extending to the bulkhead line. It is doubtful whether the appellants are in a -position to raise the question, inasmuch as it does not appear, when the report was presented for confirmation, that they made any objection so far as the awards for damages were concerned. But assuming that they are, the claim is without foundation and may be dismissed without further consideration. ,

It is also contended that the assessment for benefits is inequitable. The general rule is- that the cost of the land taken for each block of-a street shall be assessed upon property fronting upon such block. (Matter of Grant Avenue, 76 App. Div. 87; affd., 175 N. Y. 509 ; Matter of Rogers Avenue, 22 N. Y. Supp., 27.) But this rule, like all others, has its exception, as was held by this court in Matter of City of New York, Spofford Avenue, (126 App. Div. 740). In the present case the extension of One Hundred and Thirty-sixth street gives access to the water front and 'it is apparent the surrounding neighborhood will be largely benefited. It would certainly be unjust to compel the owners of the property fronting on the block to bear the entire cost, and linger such circumstances, as in the case last cited, the so-called “ block rule ” is inapplicable. The commissioners proceeded upon the proper theory. Having inspected the territory, and considered the evidence bearing upon the question, they made the assessment for benefits, and I do not think, upon the record, we would be justified in interfering with it.

The appeal on behalf of the railroad companies presents an entirely different question. The Harlem River and Port Chester Railroad Company owns a strip of land one hundred feet wide, which runs through the area assessed for benefits. The Mew York, Mew Haven and Hartford Railroad Company is the lessee and occupant of this property. It appears that the railroad tracks occupy only thirty feet of the width of this strip and the remaining seventy feet were, at the time of the hearing, unoccupied, though an attempt was made to show that additional tracks were'about to be laid. The commissioners divided the property accordingly — imposing a nominal assessment only on the parcel actually occupied, but making a substantial assessment against the unoccupied parcel — and in doing so, I think, erred.. The Harlem River and Port Chester Railroad Company acquired title to this strip, one hundred feet wide, for the roadbed of its road pursuant to its charter. Real property acquired by a railroad for the purpose of its incorporation is deemed to be acquired for a public use. (See Laws of 1890, chap. 565, § 7, as amd.) It is conceded that the land upon which the tracks were laid could iiot be assessed, but the entire strip of land was acquired, and is held for a public use. Although it is not entirely covered with tracks to-day, it may be to-morrow, or a month hence — depending of course upon the necessities of the road. I know of no authority for holding that a distinction can be made between land upon which tracks have been laid and the adjacent strips alongside of the tracks — all within the Width acquired by the company for the purpose of building its road. The authorities are to the contrary. (President, etc., Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21; Matter of Commissioners of Public Parks, 47 Hun, 302.) Great confusion would necessarily follow if it be held that only the land upon which the tracks were laid Was for the purposes of an assessment of this character, for a public use, while such adjoining strips were private property, and not subject to the same restrictions. The'principle which underlies an assessment for an improvement is that the property assessed is to be directly benefited and enhanced in value by the improvements, so that the assessment' will represent the difference between the value of the property before and after the assessment. (Matter of Anthony Avenue, 46 Misc. Rep. 525.) This'being so, it follows that no assessment can be lawfully made upon property not actually to be benefited by tlie improvement. (Norwood v. Baker, 172 U. S. 269.) While the statute makes it the duty of the commissioners to determine, in the first instance, whether property upon which an assessment for benefits is to be made will be enhanced in value, and if so, to what extent,their - determination is not conclusive, and when brought under review by the court, such facts must be presented as will enable it to see that there is a basis for the assessment made. (Matter of Commissioners of Public Parks, supra) The whole strip of land held by the railroad companies is for their use as a public highway, and' this is. a use for the benefit of the public;” (Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75; N. Y. C. & H. R. R. R. Co. v. Aldridge, 35 id. 83.) The whole strip is subject to this limitation, and its value for the purposes to which it is devoted is not enhanced by the assessment, for which reason an assessment for only nominal damages should have been imposed.

For-the foregoing reasons I am of the opinion- that the order, in so far as appealed from by the property owners other than the railroad companies, should be affirmed, with ten.'dollars costs and disbursements, and in so far as appealed from by the railroad companies should be reversed, with ten dollars costs and disbursements, and the report returned to the commissioners with instructions to strike out the assessment disallowed, and redistribute the amount thereof upon the property subject to the assessment.

Ingraham, Olarke, Houghton and Scott, JJ., concurred.

As to railroad companies, appellants, order reversed, with ten dollars costs and disbursements, and report remitted to commissioners as stated in opinion, as to- other appellants order affirmed, with ten dollars costs and disbursements. Settle order on notice. 
      
       See Laws of 1893, chap, 676, and Laws of 1905, chap, 737,— [Rep.
     
      
      See Laws of 1901, chap. 466, § 980, et seq., as amd-. See Laws of 1905, chap. 399; and Laws of 1906, chap. 658.—-[Ree. ■
     