
    In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., for the Opening and Extending of Pugsley Avenue from McGraw Avenue to Clason’s Point Road; Cornell Avenue from Clason’s Point Road to Pugsley Avenue; Ellis Avenue from Tremont Avenue to Pugsley Avenue, and Newbold Avenue from Tremont Avenue to Pugsley Avenue, etc. The City of New York, Appellant; Georgie A. McDonald, as Executrix, etc., of John B. McDonald, Deceased, and Mary Viva Brooke, Respondents.
    First Department,
    November 5, 1915.
    Municipal corporation — city of New York — street opening proceeding — award of damages — objections to assessment for benefits overruled — when assessments by commissioners should not be disturbed.
    In a proceeding by the city of New York to acquire title in fee to the bed of a street the report of the commissioners of estimate and assessment as to awards for damages was confirmed without objection except as to the portion which imposed an assessment for benefits. The new street at one end was open and in use although not to the full width. The remainder of it extended through undeveloped property over a portion of which the city had in a prior proceeding acquired a sewer easement. The property of the parties objecting to the assessment for benefits extended along both sides of the strip in which the sewer easement had been acquired. It appeared that the awards in the prior proceeding had not yet been made. Held, on all the evidence, that the assessments for benefits made at the same rate upon all the property within the area of assessment should be confirmed.
    Assessments made by commissioners in proceedings of this character should not be disturbed unless it clearly appears that they acted upon an erroneous principle, or that the assessments complained of were excessive or otherwise unjust.
    Appeal by The City of New York from so much 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 1st' day of May, 1914,. resettling 'and amending mine pro tunó a prior order entered in said clerk’s office on the 26th dáy óf September,' 1913, as sustains the objections of certain property owners't'o tKé report óf thé commissioner of assessment in this proceeding, and returns such report to the said commissioner for further consideration.
    
      John J. Kearney, for the appellant.
    
      James F. Donnelly, for the respondent McDonald.
    
      Benjamin Trapnell, for the respondent Brooke.
   McLaughlin, J.:

This a street opening proceeding. The report of the commissioners of estimate as to awards for damage was confirmed without objection, but that portion of the report of the commissioner of assessment which imposed an assessment for benefits, upon the objections of the respondents Brooke and McDonald, was not confirmed and the report was returned for further consideration. It is from this portion of the order that the city appeals.

The object of the proceeding, in so far as it is involved in the present appeal, was the acquisition by the city of title in fee to the bed of Pugsley avenue, laid out as a street eighty feet wide extending from McG-raw avenue on the north, to Clason’s Point road on the south, a distance of about two miles. At the northerly end, Pugsley avenue was apparently open and in use as a street, although not to the full width of eighty feet. For the rest of its length it extended through undeveloped acreage property over which the city had, in a prior proceeding, acquired a sewer easement over a strip sixty feet wide in the middle of the street as far south as Lacombe avenue. The property of the respondent Brooke, and a considerable portion of the adjoining property of the respondent McDonald, was' north of Lacombe avenue, extending along both sides of the strip in which the sewer easement had been acquired.

In making the assessments for benefit the commissioner apparently assessed all the property within the area of assessment, except that at the northern end, bordering on the old street, at the rate of eighty-four dollars and forty cents per front lot. The respondents filed objections, claiming that the assessments against them were unjust, excessive and inequitable. It is not claimed that the existence of the sewer easement over a portion of the street madé its opening less valuable to adjoining property. It seems to be conceded that the property of the respondents was undeveloped land of the same character as the rest of the property.

After a careful consideration of the record I am unable to find any valid reason why the report of the commissioner of assessment should not have been confirmed. It has been uniformly held that assessments made by commissioners in proceedings of this character should not be disturbed unless it clearly appears that they acted upon an erroneous principle, or that the assessments complained of were excessive, or otherwise than just. (Matter of Mayor [East 176th St.], 85 App. Div. 347; Matter of City of New York [West 157th St.], 150 id. 131; Matter of City of New York [225th St.], Id. 223.) It seems to me that the rule adopted by the commissioner in making the assessment was correct, and if he had attempted to discriminate between the property of the respondents and similar property of other owners affected, the assessments would have been unjust.

The real objections of the respondents, which were sustained by the court at Special Term, are based upon a comparison between the assessments for benefit and the awards for damage which were confirmed without opposition. In awarding damages the commissioners found that the fee value of the parcels subject to the sewer easement had thereby been diminished ninety per cent and they accordingly awarded as damages in this proceeding only ten per cent of the fee value of such parcels. The result is that property owners south of Lacombe avenue, where the sewer easement stopped, received awards for the full fee value of the eighty-foot strip taken for the street, while the property owners north of Lacombe avenue, whose property was subject to the sewer easement, were awarded the full fee value of only the ten-foot strip on each side of the sewer easement, and only ten per cent of the full fee value of the sixty-foot strip, subject to the easement. The awards to these owners, among them the respondents, were, consequently, much smaller than to the property owners south of Lacombe avenue, while they were assessed for benefit at the same rate.

In the case of the respondents the assessments for benefit are considerably in excess of the damages awarded, while the awards to the owners south of Lacombe avenue in general exceed the assessments. B ut the situation in which the respondents find themselves is the result not of any discrimination against them, but of the acquisition by the city of the sewer easement in a separate proceeding previously instituted. It is conceded in the present proceeding that the value of this sewer easement was ninety per cent of the fee value of the property; that is, of the sixty-foot strip, and if the owners had actually received that amount in the prior proceeding for the acquisition of the sewer easement, I do not understand any objections would.or could be made to the assessments in the present proceeding. The real grievance of the respondents is, as appears from the affidavits submitted on the motion for a reargument to confirm the report, that the awards in the prior proceeding-have not yet been made. It is very doubtful whether the affidavits referred to may properly be considered by the court upon this appeal, but if so they would not, in any event, affect the determination arrived at. When the present proceeding was instituted the property of these respondents was subject to the sewer easement. The commissioners and the court are bound to assume that the easement had not been imposed upon then-property without just compensation, and the awards and assessments made in the present proceeding must necessarily be made upon that theory. Assuming that the respondents have received, or will receive, the awards for the sewer easement to which the evidence in the present proceeding indicates they are entitled, there is no basis for disturbing the awards and assessments herein made.

The acquisition by the city of the sewer easement and of the fee of the street by separate proceedings is to be regretted. Both could have been acquired in one proceeding, and additional expense thereby obviated. The rights of the respondents would, in that case, have been fully protected, while under the present situation they may be seriously prejudiced, if the awards and assessments are not made upon the same basis in both proceedings. But that possibility should not prevent the determination of the present proceeding upon its merits, and, if necessary, the respondents should seek relief in the other proceeding. The fact that they may be assessed for benefits in this proceeding before the awards are made in the other is an unfortunate result of the action of the city in instituting two proceedings instead of one.

It seems to me clear, however, that in making the assessments for benefit in this proceeding the commissioner proceeded according to law, and any diminution in the assessments against the respondents, upon the theory that they have not or will not receive full compensation for the sewer easement, would be wholly unwarranted discrimination against the owners of similar property not subject to the sewer easement.

That portion of the order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to confirm the report of the commissioner of assessment granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  