
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Grant Avenue (Although not yet Named by Proper Authority), from East One Hundred and Sixty-first Street to East One Hundred and Seventieth Street, as the Same Has Been Heretofore Laid out and Designated as a First-class Street or Road in the Twenty-third Ward of the City of New York. The City of New York, Appellant; Archibald Rogers and Others, Respondents.
    
      Mode of assessing the cost of taking land for street purposes,
    In the absence of circumstances requiring the application of a different rule, the proper method of assessing the cost of taking land for street purposes is to assess the cost of the land taken for each block of the street upon the property fronting upon that block, or, in other words, to make each block pay for the land taken for such block.
    Tan Brunt, P. J., dissented.
    Appeal by The City of New York, the successor to the Mayor, Aldermen and Commonalty of 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 21st day of May, 1901, denying a motion to confirm the report of commissioners of estimate and assessment appointed in the above-entitled proceeding.
    
      John P. Punn, for the appellant.
    
      
      James A. Jeering, for the respondent Rogers.
    
      John C. Shaw, for the respondents Astor.
   Patterson, J.:

The court at Special Term denied a motion made by the city of New York to confirm the report of commissioners of estimate and assessment appointed in-.this matter, which is a proceeding to acquire lands for street purposes, and sent that report back for revision and correction. The decision of the Special Term is placed upon the ground that “ there has been such an unjust discrimination in the distribution of the cost of taking the land and for the land damages involved as- shows that the commissioners have acted on erroneous principles.” An examination of the papers submitted as the record herein abundantly justifies that conclusion.

■ The proceeding was instituted to acquire lands for opening Grant avenue, from East One Hundred and Sixty-first street to East One Hundred and Seventieth street, in the twenty-third ward of the city of New York. The commissioners filed a preliminary report, to which objections were taken by certain property owners, the respondents here. Those objections were heard by the commissioners, but they refused to change their report. The chief objection is that the assessment for benefit has not been fairly and equitably apportioned among all the owners of property benefited in proportion to the benefit derived from the opening of the street. It is quite plain upon the record, in the absence of any explanation, that an inequitable result follows from the action of the commissioners. It appears that property affected by the assessment north of One Hundred and Sixty-fifth street has been assessed out of all proportion to-the apparent benefit which accrues to it, and to the great advantage of property south of 165th street.” That is shown by a tabulated statement which was before the court below, and is part of the' record.. It appears that lands located south of One Hundred and Sixty-fifth street are more valuable than those north of that street, and yet. the burden of expense of acquiring what the Commissioners determined to be the most.valuable land taken is put upon the owner of land much less valuable.” That, statement is fully sustained by the analysis made by Mr. Justice Lawrence at the Special .Term. The effect of the action of the commissioners is that -property owners north of One Hundred and Sixty-fifth street are awarded only a. small percentage more than owners of property south of that street receive, while they are compelled to pay nearly half as much more of the assessment than those owners of the southerly lots. There is not a word in the agreed statement,, or in the evidence or in the report of the commissioners, showing conditions, either as to the situation of lots, or greater advantage to one piece of land than to another resulting from the improvement, or greater value of one piece over another by reason of new avenues of approach or access to particular lots or blocks, such as would justify this great disparity. It seems to be purely arbitrary, and on its face unjust or inequitable. Where there is no other element introduced and nothing to require the application of a different rule, I have always understood the proper one to be that referred to by Mr, Justice Cullen, viz., “ to assess the cost of the land taken for each block of the street upon the property fronting upon such block, or, in other words, to make each block pay for the land taken for such block. This rule not only seems to me fair in principle, but has been the one adopted in every street opening that has come under my observation.” (Matter of Rogers Ave., 22 N. Y. Supp. 27.) Of course, it is not an invariable rule. Circumstances may require resort to a different one, but there is nothing to take this case out of it. Doubtless, the assessment must be levied in proportion to the amount of benefit received from the whole work, but there must be something to indicate that one piece of property is benefited more than another similarly situated before it is charged with a higher assessment, and until that is shown the rule adverted to must prevail, otherwise the property owner is at the mercy of the commissioners, who may act ignorantly, or capriciously or wantonly. Under section 988 of the Greater New York charter appeals in proceedings of this character are to be heard by this' court on the merits, both as to law and fact, and on this record we must hold that there was nothing to permit of the commissioners making the unequal and unjust assessments they have made on the respondent’s property.

The order appealed from should be affirmed, with costs.

Ingraham and Hatch, JJ., concurred ; Laughlin, J., concurred in result; Van Brunt, P. J., dissented.

Order affirmed, with costs.  