
    The People ex rel. Rector, etc., of St. Ann Church, App’lt, v. Ashbel P. Fitch, as Comptroller, etc., App’lt
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    Municipal corporation — Assessment—Church.
    Under chap. 47 of 1894, which authorizes the apportionment of an assessment on church property, such apportionment must he made according to area, and not with reference to the amount of benefit received.
    Certiorari to review the action ot the comptroller of the city of New York in apportioning an assessment on church property.
    
      L. O. Van Doren, for relator ; Geo. L. Sterling, for resp’t.
   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 assesment was confirmed 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. Abu’s avenues. This assessment was confirmed by an order of this court. The total costs 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 purpóses 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 ajjportionment, 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. If 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 we 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 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.  