
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title, etc., for the Purpose of Opening Avenue D, from Rogers Avenue to East Thirty-fourth Street, in the Twenty-ninth Ward of the Borough of Brooklyn, City of New York. George Fulling and Others, Appellants.
    Second Department,
    November 22, 1907.
    Eminent domain.-^- street opening in city of New York—assessment of lands not taken.
    Commissioners in assessing portions of lands not taken on a street opening in the ■ city of New York, which, by virtue of section 980 of the charier, they cannot assess at more than one-half their value “as valued by'them,” may take into consideration the increase in value caused by the opening of the street.
    Appeal by George Fulling and others from an order of the • Supreme Court, made at the Kings County Special Term and entered in the office of the'clerk of the county of Kings on the 2d day of Movember, 1906, in so far as said order confirms an assessment upon certain parcels of property owned by said appellants.
    
      Charles S. Taber, for the appellants.
    
      James F. Quigley [Francis K. Pendleton with him on the brief],Tor the respondent.
   Woodward, J.:

This proceeding.was brought pursuant to the provisions of title 4 of chapter 17 of the charter of the city of Mew York for the pm> pose of acquiring title to land required for the purpose of opening Avenue D from Eogers avenue to East Thirty-fourth street, as laid down in the commissioners’ map of the city of New York. Avenue D as laid down is located almost exactly in the middle of a long, narrow strip of land known as the Pope farm. After taking the land required for Avenue D (a strip 80 feet wide) there was left a strip of land averaging 53.50 feet wide on the north side of the street, and a strip averaging 35.48 feet wide on the south side. The total awards for the land actually taken for the street (what is known in the proceedings as parcels 1 and 3), being 116,000 square feet, was $38,827, or about thirty-three and one-third cents a square foot, and for parcel 5, being 20,800 square feet, $3,308, or a fraction less than sixteen cents per square foot. The commissioners in their report also assessed the land left after the street had been carved out of the' tract, and in so doing in their report fixed the aggregate assessment for this improvement at $23,166.68..

Section 980 of the charter of the city of New York provides as follows: “ The said commissioners shall in no case assess any house, lot, improved or unimproved lands, more than one-half the value of such house, lot, improved or unimproved land, as valued by them” It is claimed by the appellants that the commissioners violated this provision of the charter by imposing an assessment on the lands taken greater than one-half their value. If the lands not taken are to be figured at the same rate per square foot as fixed by the award for the land actually taken for the street extension, then the contention of the appellants is right. The aggregate assessment stated in the report is $23,166.68, whereas the land not taken computed at the same rate per square foot aggregates $30,502.36, and one-half that sum is $15,251.18, which sum the appellants contend is the maximum suin which the commissioners could assess against these parcels. The respondent contends that there is no warrant in law for the contention that the commissioners must place the same value upon the lands abutting Avenue D as upon that part of the tract taken for opening that street. On the other hand, it is urged that the instant the title to Avenue D was transferred to the city the abutting lands took a new and additional value, which the commissioners were justified in considering in fixing the value, of the lands to be assessed.

It is quite manifest that the commissioners must have pursued this course' to justify the assessment actually made. We have examined the testimony as to values given by the four witnesses called in this proceeding (two for the city and two for the owners), and in their testimony they all seem to have assumed the whole tract to have been of equal value, and testified of its value as a tract, without in any way discriminating in favor of the parcels left as against the portions taken.

In view of this evidence on the part of the witnesses, both for the owners and for the city, this court is justified in assuming that the part taken was of the same character as the balance of the. land (Matter of Mayor [Lafayette Avenue], 103 App. Div. 496), and that the commissioners in making the assessment complained of took into 'consideration what they deemed to have been the increased value of the regaining parcels by reason- of the extension of Avenue D. The question then is, was that course justified under the statute.

The section above quoted limiting an assessment to' not “ more than one-half Axe value of such house, lot, improved or unimproved land, as valued by them ” is silent as to the method which the commissioners should employ in fixing the valuation — whether as determined before or after the street extension had been made.

The question raised may perhaps be answered by supposing the converse of the situation presented on-this appeal. Assume that instead of the property not taken being benefited by the proposed extension ■ it had been seriously depreciated. Such a case is quite possible, for a. street might be extended through a strip-of land at such a grade, or might leave the parcels untaken of such a. shape as to seriously depreciate the- value of those parcels instead of conferring benefits. In case of such, a depreciation it could hardly be argued that the commissioners would be justified in assessing the land hot taken on the basis of its former valuation per square foot. Such method of procedure would be productive of rank injustice.' We, therefore, conclude that commissioners in determining the value of the parcels untaken must determine and fix that value on what the parcels are worth with the street extension made, and the title to the land within the street lines vested in the city of Hew York.

The commissioners, therefore, having been lawfully justified in pursuing this method, and having certified in their report that they have followed and complied with the directions of the' statute under which they acted, and limited " our assessment for benefit to one-half the value of the lots or parcels of land lying within said area or district of assessment as valued by us, pursuant to the provisions of' Section 980 of the Charter of the City of New York,” and nothing appearing. in the record to the contrary in this case, under the authority of Matter of Whitlock Ave. (178 N. Y. 421), we conclude the order appealed must be affirmed, with costs.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Order affirmed, with costs. 
      
       See Laws of 1901, chap. 466, § 980, as amd. by Laws of 1905, chap. 299. Since amd. by Laws of 1906, chap. 658.— [Rep.
     