
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., for the Opening and Extending of Thayer Street, etc., from Broadway to Nagle Avenue, and Arden Street, etc., from Broadway to Nagle Avenue, in the Twelfth Ward, Borough of Manhattan, City of New York. Calendar Realty Company, Appellant.
    First Department,
    May 13, 1910.
    Eminent domain — street opening, city of New York —award of damages —. assessment for benefits received.
    .The Appellate Division will not interfere, with'an award of. damages made on a street opening in the city of New York where it is sustained -by the evidence ■ and the commissioners- had the benefit of a view of the p. emises and did not proceed upon an erroneous, theory. ■
    But an assessment .for benefits received on such street opening will be sent back to the commissioner for readjustment, even though the report, state that the assessment did not exceed one-half of the value of the property assessed, if it. do not show the valuation placed upon -the property before the street was opened Or thereafter..
    . Appeal by the Calendar Realty Company 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 17th day of November, 1909, confirming the report of commissioners of estimate and the report, of the commissioner of assessment herein.
    
      Abraham Benedict of counsel [Samuel Unternyyer with him on'the brief],'for the appellant.
    
      Joel J. Squier of counsel [id W. Qahrmann with him on the ' brief],, Archibald B. Watson, Corporation Counsel, for the respondent. •
   Clarke, J.:

This appeal is for the purpose of' reviewing an award of $14,672.96 for damage parcel No 5. upon the ground that it is' insufficient and an assessment for, benefit upon parcel*No. 7 of $1,90.7.52, and upon' benefit parcel No-. 6 -of $5,009.50 upon the ' ground that said assessments are excessive and in violation of the provisions of section 980 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658), which provides that Said commissioner of assessment shall in no case assess any house, lot, improved or unimproved lands, more than one-lialf the value of such house, lot, improved or unimproved land, as valued by him.”

Arden street, as proposed, ran from Nagle avenue to Broadway and was sixty feet wide. The appellant’s property had a frontage on Broadway of one hundred feet, of which, after the taking, there was left a strip ten feet wide on the north side of Ar.den street and thirty feet wide on the south side. At the time of the proceeding it was covered with rock to a height of thirty feet above the grade of Broadway, sloping towards the rear of the lot.

We see no reason to interfere with the action of the commissioners so far as the award for the property taken is concerned. It is sustained by the evidence, the commissioners had the benefit of their own view of the premises, and it does not appear that they proceeded upon an erroneous theory.

The assessment for benefit presents a different question. The commissioner is prohibited by the statute from assessing any property at more than one-half of the value thereof, as valued by him, and in his report he has returned, I liáve valued such parcels of land assessed by me, and that in no case does the assessment - for benefit exceed one-half the value of the property assessed, as valued by me.” He does not return the value of the two parcels under consideration as valued by him, nor does he state whether such valuation was made as of the time of the assessment of damages, to wit, before the street was opened or thereafter, when the property could,properly be considered to have received the benefit of said opening.

There is no evidence in the case of the value of the lands adjacent, to the street after the opening. We, therefore, have no information from the testimony or from the report showing the time or the condition assumed for the determination of the assessment for benefit.

One of the city’s witnesses testified that the value. of the whole plot, in his opinion, was $20,548 ; the damages, $12,848.92, and the value of the remaining strips, $7,699.08. The other testified that ■the value, of the plot, in his opinion, was $24,454; the damages, $16,497, and the value - of the remaining strips, $7,957. Taking the mean of those two estimates as the commissioners appear to have done when they estimated the damage, we' find the witnesses’ estimate of the value of the remaining strips to be $7,828.04. Upon that basis the assessment should have been $3,914.02, while as made it was $6,917.02. We should call attention also to the fact that the ten-foot strip upon, the north side of the street covered with thirty-feet of rock has been assessed for benefit $1,907.52.

In Matter of Mayor, Lafayette Avenue (103 App. Div. 496) this court, Mr. Justice McLaughlin writing the opinion, said : It is true there is in the report a statement to the effect that the commissioners have in no case exceeded in their assessment for benefit one-half of the value of the land assessed as valued by them, and if there were nothing else in their report or the proceedings had before them to show to the contrary, this statement would be conclusive, under the recent decision in Matter of Whitlock Ave. (178 N. Y. 421). Such statement, however, is not conclusive when the' evidence presented shows that the same' has been inadvertently or. erroneously made, and that is what here appears. The record shows that Bollins, at th'e time his land was taken, was the owner of a tract of unimproved land (called salt meadow land), which contained six and seven-tenths acres, one and one-half acres of which were .taken by the commissioners, and for which they awarded $3,090, viz., $2,000 an acre. The part taken, so far as appears, was of the same character as the balance of the land, which at the same rate would have been worth $.10,400. It was assessed for benefits $7,778.09, which is more than óne-half of its value, and in excess of what the charter allows. Therefore, in view of such facts, I think the court properly ordered the report back for correction.”

In Matter of City of New York (Avenue D) (122 App. Div. 416) Mr. Justice Woodward, in considering a case where land had been taken, leaving a strip on each side, and referring to section 980 of the charter, said : “ 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 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. * * * ■The section above quoted limiting an assessment to not ‘ more than one-hoXf the 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. * * * 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 New York; ” and held that, the commissioners having been lawfully justified in pursuing this method and having certified that they had followed the directions of the statute and limited their assessment as required, the report should be confirmed.

The Court of Appeals (192 N. Y. 575) while it affirmed the order in said matter, said : “ The question whether the commissioners exceeded the limitation prescribed * * is not passed upon because not presented by the record. The appellant should have moved to send the report back to the commissioners with instructions that they specify whether their valuation was made as of the date when title vested or as of the date of their report.”

We think the court should be advised of the date taken by the commissioner of assessment for his determination of the value, for if it "was as of the date of the estimate for damages, we think the report must, upon this record, be sent back to the commissioner for readjustment of the assessment for benefit.

The order appealed from should, therefore, be affirmed in so far as it confirms the award for damages and the report should be returned to .the commissioner of-assessment for further return as indicated, without costs to' either party upon this appeal.

Ingraham, P. J., McLaughlin and Scott, JJ., concurred.

Order affirmed so far as it confirms award for damages, and report returned to commissioner for further return as indicated in opinion, without costs to either party, on .this -appeal. .Settle order on notice.  