
    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 Whitlock Avenue (Although not yet Named by Proper Authority), from Hunt's Point Road to Westchester Avenue, 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 Mayor, Aldermen and Commonalty of the City of New York, Appellant; William Simpson and John B. Simpson, as Executors, etc., of John Simpson, Deceased, and Others, Respondents.
    
      Eminent domain —• interest upon awards in Jfeio York city — limitation upon the amount of an assessment to one-half the value of the property — sueh value, how dietermined.
    
    Section 990 oí the Greater New York charter (Laws of 1897, chap. 878), relating to" the allowance of interest upon awards made in condemnation proceedings instituted by the city of New York, applies only to original proceedings taken thereunder since January 1, 1898, when the charter took effect, and does not apply to proceedings instituted, under the Consolidation Act (Laws of 1882, chap. 410).
    The question whether the amount of an assessment for benefits, made in a proceeding instituted under the Consolidation Act, hut not completed until after the Greater New York charter took effect, is limited by section 981 of the Consolidation Act to one-half the value of the property as fixed by the tax commissioners, or by section 980 of the Greater New York charter to one-half the value of the property as fixed by the condemnation commissioners, depends upon tbe.question whether the earlier rule had been fully applied prior to the time the new charter went into effect; if it had not, the new rule governs; if it had, the new rule is inoperative.
    Appeal by The City of New York, the successor of 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 13th day of December, 1899, denying a motion to confirm the report of commissioners of estimate and assessment, appointed in a proceeding to lay out Whitlock avenue in the city of New York:
    
      John P. Dunn, for the appellant.
    
      Barclay E. V. McCarty for the respondents.
   Patterson, J.:

The city of New York appeals from an order made at Special Term denying a motion to confirm the report of the commissioners in the above-entitled matter, and sending such report back to them for correction in certain, particulars. The proceeding was begun in the year 1894. The .'commissioners were appointed in August, 1895. The proceeding was then regulated' and controlled by the provisions of the Consolidation Act and continued to be so controlled until January 1, 1898, when the Greater New York charter went into operation. Title to the land to be taken for the purposes of the street vested.in the mayor, aldermen and commonalty of the city of New York in March, 1896, by virtue of a resolution of the board of street opening passed in October, 1895. The commissioners took testimony on behalf of property owners and of the city at various times until February, 1897, and it appears that they closed the preliminary hearings at that time, but subsequently, and on J une 22,1899, the respondents introduced a stipulation as to the valuation of the properties assessed, made by the tax commissioners, for the years 1895, 1896 and 1897, and that was received by the commissioners in evidence. The commissioners met'in executive session and determined as to their damage awards on the 5th of Aprils 1897, and on the 9th of April, 1897, they adopted-an area of assessment for benefit. They held no session between April 9, 1897, and January 14,1898. On the last-named day they directed that a plan of assessment for benefit be ready for them on January . 18, 1898, on which day they considered such a ¡fian which had been prepared and submitted to them, and at subsequent dates in January, 1898, they met in executive session and considered the assessment for benefit. In March, 1898, they considered their preliminary report and also a revised plan of. assessment for benefit. On -March 2.6, 1898, they signed their preliminary estimate. On May 20, 1898> they instructed their clerk to file their preliminary estimate, which was doné on the 26th of May, 1898. Objections were taken to the preliminary estimate, and at various times from June, 1898, to June, 1899, the commissioners held meetings to consider such objections, and at the last-named date the.stipulation above referred to as' to the tax commissioners’ valuations was put in. evidence, On June 22, 1899, the commissioners filed their final report in which, referring to the awards for damage, they state : “We further report that we have included in our awards, as part of the compensation, inter est on said awards from the date of the vesting of title in this'proceeding to the date of this our report, pursuant to section 990 of the Greater New York Charter, and that we have included in our assessments for benefit this amount of interest.” They also state: “ We further report that in no. case have we exceeded in our assessment for benefit one-lialf .of the value of the lot assessed as valued by us$ and have not considered our authority to assess to be limited to one-half of the value of said lots as valued by the Tax Commissioners of the City of'New York.” Included in the. estimate for benefit ale the costs, expenses and charges incurred in the proceeding after the date of the vesting of title in the city.

In disposing of the motion to confirm -the final report of the commissioners, the court, in the order appealed from, held that the interest computed by the commissioners for compensation for properties taken in the. proceeding and included by them in the assessment for benefit should have been omitted therefrom. In this respect the order appealed from was properly made. We held in Matter of East 175th Street (49 App. Div. 114) that questions respecting the allowance of interest upon awards to owners of land taken in street opening proceedings could only arise upon original' proceedings instituted under the provisions of the Greater New York charter; that is to say, since the 1st of January, 1898, and that the provisions of section 990 of that charter relating to interest on such awards do not apply to proceedings instituted under the Consolidation Act.

In the order appealed from it is also provided (in its second direction) that the assessment for benefit in the commissioners’ report in excess of the amount limited to one-half of the valuation of the tax commissioners as prescribed by the Consolidation Act be omitted therefrom. That provision is a determination that the power of the commissioners was limited by section 981 of the Consolidation Act, which confined them to an assessment for benefit of one-half the value of the property as that valuation was fixed, by the tax commissioners the previous year (1898). By this ruling, the question is directly raised as to the applicability to this proceeding of section 980 of the Greater New York charter, which authorizes the commissioners in street opening proceedings in assessing for.benefit to fix the assessment at one-half the value of the property benefited as valued by them.”

The appellant contends that the rule of the Greater New York charter should apply, while the contrary is insisted upon by the respondents. Both parties appear to rely upon what was decided by' this court in Matter of One Hundred and Sixty-ninth Street (40 App. Div. 452) as authority for their respective positions. In that case it was held, in substance, that where a proceeding of this character was initiated under the Consolidation Act, but was continued •after the Greater New York charter went into effect, the rule under that charter would govern the commissioners had it gone into effect prior to their action under the earlier rule, but that where the earlier rule had been fully applied prior to the change effected by the charter, then that the new rule was inoperative. In that case it was .found upon the facts that the commissioners had taken and considered all the testimony presented to them under the earlier rule and had given judgment upon that testimony, subject merely to correction “ for error or mistake in weighing or applying it,” and it was also held that the preliminary abstracts of estimate and assessment constituted the evidence of the commissioners so having acted upon and applied the rule. There the preliminary abstracts of estimate and assess^ ment were filed on the 22d day of December, 1897, and in speaking, of that case it was said by this court in Matter of Whittier Street (46 App. Div. 56) that if th& formal action of the commissioners' had taken place after the new charter took effect, it would have-been the duty of the commissioners to apply the rule as laid down by the new charter, and not as laid down by section 981 of the-Consolidation Act.

It cannot be said from the facts as they appear upon the record before tis, that the commissioners in this proceeding had considered the testimony before them as to assessments for benefit, passed upon-it and formed their judgment respecting it before the Greater New York charter went into effect. Their deliberations respecting the- • plan of assessment for benefit were continued until March 26,1898, when they signed their preliminary estimate, which was not filed until the 26th of May, 1898. It was not until the last-mentioned date that their action partook in any respect of the nature of "a. determination or judgment, subject to correction only “for error or mistake in weighing or applying ” the testimony. In this view,, we think it was error for the court below to hold that the provisions of the Consolidation Act controlled this proceeding.

An argument has-been made by the respondents resjjecting the unconstitutionality of the provision of law which would allow, in, the making of an assessment for benefit, the taking into consideration of any benefit accruing after the date at which the title vested-1 in the city; but we regard this case.as. falling within the recognized . principle of law, that assessments for benefit in improvements of this character are within the general power of taxation. (People ex rel. Griffin v. Mayor, 4 N. Y. 419 ; Matter of Van Antwerp, 56 id. 261; Litchfield v. Vernon, 41 id. 123.)

The subject of the allowance of costs and expenses of this proceeding being included in the estimate of benefit is not properly before this court. The order appealed from makes no mention of that subject and no direction was given by t-lie court below respecting it. The city is the only appellant and nothing is’before us but what is brought up by its appeal.

The order appealed from should be modified by striking out the provision numbered second therein, and as modified should be affirmed, without costs.

■Van Brunt, P. J., Rumset, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified • affirmed,, without costs.  