
    Frank W. Ellwood, Resp’t, v. The City of Rochester et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Municipal corporations—Assessments.
    An ordinance directing an assessment designated the portion of the city which the common council deemed would be benefited by the improvement, and commauded the commissioners to make assessments on all the lots in said portion as nearly as may be to the advantage which each should be deemed to acquire. The commissioners divided the territory into two districts, one as receiving a special and one a general benefit, and1 assessed the first a certain sum per foot without regard to value, and the-latter by a percentage on the value of the property. Held, that the commissioners were not authorized to make such division, and that thereby plaintiff’s property, which was in the district determined to be specially benefited, was increased, and the assessment was illegal.
    Appeal from an order and judgment of the general term of the supreme court, fifth department, affirming that portion of a judgment entered upon the report of a referee which vacated and set aside an assessment against plaintiff’s property.
    
      Henry J. Sullivan, for app’lts; Oscar Oraig, for resp’t
    
      
       Affirming 6 N. Y. State Rep. ,132.
    
   Parker, J.

This action is addressed to the equitable jurisdiction of the court, for the purpose of securing the removal of an apparent lien on plaintiff’s land and a cloud upon Ms title growing out of proceedings taken to open a street in the city of Rochester which resulted in an assessment for special benefits of which plaintiff complains.

The general term in affirming the judgment rendered in favor of the plaintiff have so thoroughly discussed the questions involved as to render it unnecessary for this court to do more than briefly state the ground which requires an affirmance of the judgment

The common council, pursuant to the requirements of §§ 170 and 172 of the revised city charter, chapter 14, Laws of 1880, in the ordinance directing the assessment, designated the portion of the city which they deemed would be benefited by the improvement, and commanded the commissioners of assessment “to make an assessment upon all the lots and parcels of land and houses within the portion or part of said city so designated of the said amount of expenses in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of said improvement”

Upon the commissioners, therefore, devolved the duty merely of making the assessment within the territory designated in proportion to the benefits to be derived from the improvement.

They were bound to assume that every separate piece of real estate derived some benefit and advantage, for the common council had so determined. And they were without authority to modify such determination. Hassen v. City of Rochester, 65 N. Y., 516; 67 id., 528.

But the commissioners, in disregard of the determination of the common council that all of the lands embraced within the designated limits would be specially benefited by the improvement, proceeded to divide the territory into two districts, one of which they decided would receive a special benefit from such improvement and the other a general benefit. The sub-district deemed especially benefited, they assessed by apportioning to and upon each lot a sum per foot front, without reference to the value of the buildings or improvements thereon. The amount of the assessment upon the sub-district deemed generally benefited they placed thereon by a general assessment by percentages on the real property therein, taking the valuations from the last assessment roll for general city and county taxes, making changes of value in accordance with their judgment, and placing different percentages upon the various streets, having reference to their location with respect to the improvement The referee has so found and the general term has approved the finding. The effect of such unauthorized action was to contract the area of special benefits as determined by the common council. Within the lines prescribed by that body the commissioners arbitrarily established another line, and beyond its confines they determined there were no special benefits, but only general benefits, and upon which they proceeded to make an assessment by a totally different rule than that adopted in the sub-district which they decided to be specially benefited.

Plaintiff’s lands were situate in the sub-district which the commissioners arbitrarily determined would derive special advantage as against the residue of the designated territory.

Presumptively, therefore, his assessment was increased by the determination not to assess for special benefits in the other subdistrct, and he is entitled to an adjudication that the assessment is illegal because of the failure on the part of the commissioners to comply with the ordinance and with the requirements of the statute. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Bradley and Haight, J. J., not sitting.  