
    (87 Hun, 391.)
    PEOPLE ex rel. RECTOR, ETC., ST. ANN’S CHURCH v. FITCH.
    (Supreme Court, General Term, First Department.
    June 14, 1895.)
    Street Assessments—Apportionment—Church Property.
    Laws 1894, c. 47, authorizing the comptroller of New York City to apportion an assessment on church property between so much thereof as was used for cemetery purposes and so much as was not so used, and to cancel the portion levied against the cemetery land, requires the apportionment to be made according to area, and not with reference to the amount of benefit received.
    Certiorari by the rector, etc., of St. Ann’s Church of Morrisania in the city of New York against Ashbel P. Fitch, comptroller of the city of New York, to review the* action of defendant in apportioning an assessment on the church'property.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    L. O. Van Doren, for relator.
    Geo. L. Sterling, for respondent.
   VAN BRUNT, P. J.

The relator is the owner of a large tract of land in the Twenty-Third ward, comprising most of the block bounded by 139th street, 141st street, St. Ann’s avenue, and Brook avenue. On the 30th of August, 1889, an assessment was con: firmed to reimburse the city for the expense of acquiring title to the lands lying within the lines of East 139th street between Rider and St. Ann’s avenues. This assessment was confirmed by an order of this court. The total cost of the proceeding was $11,974.70, and the amount assessed against the relator’s property, with which we are here concerned, was the sum of $2,232.44. A part of this land had been conveyed to the church for cemetery purposes only, and a part for other than cemetery purposes. By chapter 47 of the Laws of 1894 the comptroller was authorized to apportion this assessment between that portion of such lands conveyed to said church and held and used by it for cemetery purposes and that portion of said lands not so held for cemetery purposes by said church, ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed, and to cancel and annul that proportion of said assessments which said comptroller should so apportion as levied and made against the said cemetery land of said church. The comptroller did apportion this assessment between that portion of the lands conveyed to the church and held and used by it for cemetery purposes and that portion of said land not so held for cemetery purposes by said church ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed. It appears, however, upon an examination of the apportionment, that the assessment was apportioned with reference to the amount of benefits received, and not in accordance with the area of each parcel; and to review this decision of the comptroller this writ of certiorari was issued.

The question presented, therefore, is whether the comptroller was required to apportion this assessment with reference to the area of the tracts or with reference to the amount of benefit received. It seems to us that there can be but one answer to this question. Attempting to apportion the assessment according to what the comptroller might think was the benefit received, would be virtually the levying of a new assessment. Such a proceeding does not seem to have been contemplated by the act. The comptroller was directed by the act to apportion the assessment ratably between the lands held for cemetery purposes and those not so held, and the only way, it seems to us, in which this ratable apportionment could take place would be by apportioning the assessment according to area. It is evident that it was not. intended to confer upon the comptroller judicial powers in making this apportionment; otherwise the explicit direction contained in the statute would not have been given. In other statutes relating to the subject of apportionment the comptroller is authorized to apportion the same as might seem to him to be just and equitable. But such language is conspicuously absent from the act now under consideration. He is to apportion the assessment ratably between said lands, etc. In none of the statutes where the words “just and equitable” are used do wé find the word “ratably.” The only ratio which is presented is the relative areas of the portions of the land which are to be exempted from assessment because used for cemetery purposes and those which are not to be so exempted. We think, therefore, that the decision of the comptroller proceeded upon an erroneous basis, and that his action should be annulled, and the proceedings sent back for further action, without costs. All concur.  