
    Matter of the Application of The City of New York, Relative to Acquiring Title, Wherever the Same has Not Been Heretofore Acquired, for the Same Purposes in Fee, to the Lands, Tenements and Hereditaments Required for the Opening and Extending of Public Playground, Within the Area Bounded by Douglas Street, Dumont Avenue, Hopkinson Avenue, Bristol Street, Dumont Avenue, Hopkinson Avenue and Livonia Avenue, in the 26th and 32d Wards, Borough of Brooklyn, City of New York.
    (Supreme Court, Kings Special Term,
    January, 1916.)
    Evidence — expert — award by commissioners.
    Condemnation proceedings — railroads — when objection to assessment overruled.
    Unless, upon a motion to confirm vthe reports of the commissioners of estimate and the commissioner of assessment in proceedings to acquire land for a public playground, it appears that the commissioners in making awards have acted arbitrarily, unlawfully or without due regard to the evidence, the court should be reluctant to set aside the proceedings though there may be some present doubt as to the benefit to the land owners at the extreme end of the area of assessment.
    The mere fact that in some instances the commissioners awarded less than the value testified to by the experts sworn for the city does not warrant the court in setting aside the commissioners’ report.
    Where it appears from the evidence that part of the land of two railroad companies is used as a ear barn and yard; that part of the land is enclosed with a high board fence and used as a storage yard, and that on other portions of said parcels of land there is an elevated railway, structure covered with timber on which elevated trains are assembled and stored, an objection by the railroad companies that they should not be assessed for benefit for the reason that their land is devoted to railroad purposes and, therefore, for a public use, is not well taken; the objectors are not compelled to continue using their land for storage purposes but might, if they saw fit,. change the place where their ears are stored and then dispose of the property after having obtained the benefit of the public improvement, and where it appears from the record that in the preparation of the final report as to these plots of land it was realized that the uses to which the same were being put justified some consideration as to the matter of benefit received, a reduction of twenty-five per cent on the original assessment, a fair and equitable concession, was made, the objections will not be allowed.
    Where pursuant to the power vested in the board of estimate and apportionment to fix an area of assessment said board fixed it approximately one mile in radius from the playground, the commissioner of assessment was compelled to distribute the assessment within that area, and, where he after viewing the property fixed' upon the flat rate of assessment rather than the zone rate in the belief that that method would be more equitable and just, an objection by other property owners that the assessment, was not levied according to benefit and was therefore unfair, inequitable and unjust and that the zone rate should have been adopted will be overruled, the court being satisfied that the decision of said commissioner of assessment in respect to the rate was not an abuse of the discretion vested in him and that it was commensurate with the benefits derived by the property assessed.
    Application to confirm the reports of the commissioners of "estimate and the commissioner of assessment.
    Lemar Hardy, corporation counsel, for city of New York.
    Frank E. Johnson, Jr., for the Brownsville Association.
    George D. Yeomans, for the New York Consolidated Railroad Company, and the Nassau Electric Railroad Company.
    Edwin C. Hamburg, for Patrick T. McDermott and others.
    
      Robert H. Haskell, for Simon J. Harding.
    Philip B. LaRoche, Jr., for Isidore Mosson.
   Aspinall, J.

This is an application to confirm the reports of the commissioners of estimate and the commissioner of assessment in the above entitled proceeding.

The proceeding involves the acquisition of the block of land bounded by Blake avenue, Bristol street, Dumont avenue and Hopkinson avenue, and of the three blocks of land bounded by Dumont avenue, Hopkinson avenue, Livonia avenue and Douglas street in the borough of Brooklyn, this property to be used for the purposes of a children’s playground.

Upon the motion made before me to confirm the commissioners’ reports, objections were interposed by the owners of certain damaged parcels. These objections were confined to the inadequacy of the awards made for such parcels by the commissioners of estimate.

The report of the commissioner of assessment was also opposed by the New York Consolidated Railroad Company, and the Nassau Electric Railroad Company, upon the ground that the properties of the said companies were not subject to assessment for the reason that the lands so assessed were acquired by the said railroad companies for railroad purposes and therefore for a public use.

The report was also opposed by Simon J. Harding, Patrick J. McDermott and others, owners of a large number of parcels of land, upon the ground that the method of assessment for benefit based upon a flat rate was erroneous and not proportionate to the benefits conferred. That the same were arbitrary and unfair; that said assessments should have been only nominal in amount, in other words, that the assessments should have been made on the zone rate or plan rather than -at the flat rate.

I have not only read the record in this proceeding but I have personally visited the playground, and have inspected the land within the radius of a mile of such playground, being the area of assessment, so that I might familiarize myself with the entire situation.

The question of assessment is not entirely free from doubt and there is possibly some reason for discontent and antagonism at the present time to such assessment by some of the property owners affected, but unless! the commissioners have acted - arbitrarily, unlawfully and without reason this court should be reluctant to set aside these- proceedings, although, as I have said, there may be some doubt at the present time as to the benefit to the landowners at the -extreme end of the area of assessment.

The objections as to the inadequacy of the awards do not convince me that the commissioners hav-e acted arbitrarily, unlawfully or without a due regard to the evidence submitted upon the hearings before such commissioners -and, in my -opinion, the objectors have completely failed to direct the- court’s attention to any material fact o-r facts that would warrant this court in setting aside -s-aid report.

The mere fact that the commissioners have, in some instances, awarded lesis than the value testified to- by the city’s expert, does not and would not, under the authorities, warrant any -such interference. This proposition has been decided time and time again by the courts of this state and needs no- citation of authorities to sustain the -same at this time.

The contention is made on behalf of th-e- New York Consolidated Railroad Company and the Nassau Electric Railroad Company, that they -should no-t be assessed for benefit herein for the reason that their land is devoted to railroad purposes and, therefore, for a public use, but it appears from the evidence that part of this land is used as a car barn and yard; that part of the land is enclosed with a high board fence and used as a storage yard, and that on other portions of the said parcels of land there is an elevated railway structure, covered with timber, on which elevated trains are assembled and stored, consequently, I am satisfied that this objection, upon the ground that the property is used for a public purpose, is not well taken.

This is not the same as a right of way which is, I think, generally conceded to be for a public purpose.

In so far as the parcels of land belonging to these objectors is concerned, there might be a surrender of the same at any time. The objectors are not compelled to continue using them for the purposes to which they are now put, namely, for storage. They might, if they saw fit, change the place where their cars are stored and then dispose of the property after having obtained the benefit of the public improvement.

It cannot be said that the benefit parcels are for a general public use when the public does not use the same either directly or indirectly.

It appears from the record that the commissioner of estimate in preparing his final report as to these plots of land realized that the uses to which the same were being put justified some consideration as to tire matter of benefit received and in his final report made a reduction of twenty-five per cent, on his original assessment, which was a fair and equitable concession, and I am of opinion that the objections of the railroad companies, for the reasons above stated, are untenable and should not be "allowed.

As to the objections raised by Simon J. Harding, Patrick J. McDermott and others, that the assessment was not levied according to benefit and was, therefore, unfair, inequitable and unjust, and that the zone rate should have been adopted rather than the flat rate, I have this comment to make: Under the law the power was vested in the board of estimate 'and apportionment to fix an area of assessment, and pursuant to such power the said board fixed an area of assessment approximately one mile in radius from the playground and the commissioner of assessment was, therefore, compelled to distribute the assessment within that area.

The commissioner, pursuant to his sworn duty, after having viewed the property, fixed upon the flat rate of assessment rather than the zone rate or theory, believing that method would be more equitable and just.

The Betsy Head Memorial Fund, including principal and interest, amounted to the sum of $221,202.55, and this entire amount has been expended, or is available for expenditure, for making the physical improvements in connection with the playground.

The amount of awards, interest and taxable costs in this proceeding aggregates the sum of $263,610.44, and in -order to raise this amount so that payments could be made it became necessary to levy an assessment of that amount upon the land within the area of assessment. According to the figures presented that would mean an assessment on each lot of land, 20 by 100 feet, of about the sum of ten dollars-, which certainly cannot be said to be excessive.

I am satisfied that the playground if not now of great benefit to some of the property within the area of assessment, will, as time progresses, become of considerable benefit not only to -such property but also to the territory adjacent thereto, and inasmuch as the commissioner of assessment was restricted in making the assessment to one of two methods, namely, the flat rate or zone rate, I am satisfied that he adopted that method, namely, the flat rate, which, in his opinion, would distribute the assessment justly and equitably, and that his decision in that respect was not an abuse of the discretion vested in him, and that such assessments were not the result of an arbitrary or unjust determination on his part, but that the same are commensurate with the benefits derived by the property assessed.

As an evidence of the fact that the commissioner did not err in adopting the flat rate rather than the zone rate, it can be easily determined or demonstrated by considering the amount which would be assessed against Simon J. Harding, one of the largest landowners within the area, under the two methods. The number of city lots assessed against him is placed at about 1,084, and the assessment against this property under the flat rate amounts to about the sum of $10,500, whereas under the zone rate it is estimated that the assessment against this property would amount to about $30,000, making a difference of about $19,500, under the zone rate in excess of what it would be under the flat rate.

Such an assessment would almost, if not actually, amount to a confiscation of his property.

I have given this matter, on account of its importance to the city of New York, and to the owners of the property affected herein, very serious consideration, and have reached the conclusion that the commissioners have not acted arbitrarily or unlawfully, and I therefore grant the motion to confirm the commissioners’ reports.

Motion granted.  