
    In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of West Two Hundred and Thirty-first Street, from Bailey Avenue to Riverdale Avenue, etc. Charles E. Manierre, Individually and as Executor of and Trustee under the Last Will and Testament of Alfred L. Manierre, Deceased, Appellant; The City of New York, Respondent.
    First Department,
    January 22, 1914.
    Municipal corporations — street opening, city of Mew York — assessment for "benefits — effect of street grade upon value of adjoining property.
    Commissioners of assessment in a street opening proceeding in the city of New York when assessing the benefits to those portions of the lands of an abutting owner which were not condemned should take into account in estimating the benefit to the lands not taken the grade at which the street is to be placed. For example, they should consider the fact that the grade as established will leave the portions not taken twenty-five feet above the street level. Lands which will abut on the new street at grade will be more benefited than lands which cannot be brought to grade without a large expense either for excavation or for filling. Inoraba m, P. J., and Clarke, J., dissented.
    Appeal by Charles E. Manierre, - individually and as executor and trustee, etc., from part of 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 18th day of December, 1912, overruling objections to the confirmation of the report of the commissioner of assessment herein and confirming the said report.
    
      William A. Jenner, for the appellant.
    
      Joel J. Squier, for the respondent.
   Scott, J.:

This proceeding is brought to open and extend West Two Hundred and Thirty-first street from Bailey avenue to River-dale avenue in the city of New York, borough of The Bronx. The appellant is the owner of real property contiguous to and abutting upon said street, a portion of his property having been taken for the street. The sole question involved in this appeal relates to the assessment for benefit of that portion of the property not taken, and is whether or not the commissioner of assessment in distributing the assessments over the benefited area should take into account in estimating the value of the abutting property the grade at which the street is to be regulated. In the present case the grade was duly established according to law on February 14, 1908. The resolution of the board of estimate and apportionment directing the street to be opened was adopted June 5, 1908, and commissioners of estimate and assessment were appointed February 17, 1909. The profile map showing the established grade indicates that when the street has been regulated and graded, the grade of appellant’s remaining lots abutting on the street will be about twenty-five feet above the grade of the street. The duty of the commissioner of assessment is to distribute and assess the cost and expense involved in the proceeding upon the property included within the assessment area in proportion to the amount of benefit received.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 980, as amd. by Laws of 1906, chap. 658, and Laws of 1909, chap. 394.) The benefit received naturally refers to the benefit which will accrue from the physical and actual opening of the street, for until it is physically and actually opened no benefit of any sort can come from the legal acquisition by the city of a strip of land destined to be a street. Consequently it seems to follow that in determining the value of the property to be assessed for the purpose of distributing the assessment regard must be had to the physical relation which will exist between the street, when it actually becomes a street, and the property abutting upon it. This is not a question, as the corporation counsel laboriously argues, of awarding damages to an abutting owner because the established grade of the street will impair the value of his property. The question is wholly one between the owners of property within the assessment area. A certain amount is to be distributed by way of assessments over that area, each lot being assessed presumptively in proportion to the benefit it will derive from the improvement. As a basis for such assessment it is necessary to determine the value of eách lot without the improvement, and its value after the improvement has been • completed. The difference shows the benefit derived. Such a comparative valuation cannot be properly made without taking into account the physical relation which the street as finally completed will bear to the property to be valued, for manifestly a lot of land abutting upon the new street at grade will be more benefited by the opening of the street than a lot which cannot be brought to grade without a large expense for excavation or filling. Of course the arbitrary and artificial rule of the common law that the owner of land abutting upon a street cannot recover for a change of grade has no application to the present case.

We are of opinion that the commissioner of assessment erred in refusing to receive evidence of and to consider the effect of the established grade of the new street when physically regulated and graded upon the abutting property. For this reason the order appealed from in so far as it confirmed the report of the commissioner of assessment must be reversed, and the matter referred back to said commissioner for a reassessment in accordance with the view herein expressed, with ten dollars costs and disbursements to the appellant.

McLaughlin and Laughlin, JJ., concurred; Ingraham, P. J., and Clarke, J., dissented.

Order reversed, with ten dollars costs and disbursements to appellant, and matter remitted to commissioner as stated in opinion. Order to be settled on notice.  